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and 118 New York State Reporter On November 19, 1895, one McGann fell into an unguarded excavation on the premises and was injured. Notice of tlie occurrence of that accident was given to the defendant, but no claim for damages for the injuries was made by McGann against Wood & Tolmie. An action was, however, begun by the former against the city of New York in February, 1896, which resulted in a judgment in favor oi the plaintiff against the city in the sum of about $1,700. The city of New York had served notice of "vouching in” upon the plaintiff's firm, whereby they were required to come in and defend, and due notice was given to the defendant of the claim thus made upon plaintiff's firm. The defendant refused to recognize any liability under its policy with the plaintiff. The attorney for the defendant, however, as the jury has found in this case, upon a special issue submitted to it upon the trial, appeared in said action and tried the case on behalf of the city. During the pendency of the action against the city, the plaintiff, in order to release the moneys retained by the city under the provision of its contract, executed a special undertaking, with sureties, in which, after reciting that the claim for damages made by the said McGann is without merit, and, if he actually received injury, it was due entirely to his own negligence, and not to the carelessness and negligence of the said contractors, the plaintiff agreed to "indemnify and save harmless the said Mayor," etc., "against all loss, damage, costs, charges and expense to which they may be put, or which may be recovered against them, or either of them, by reason of said claim, whether groundless or otherwise, for damages, made by said James McGann, and said action brought by him to recover damages against the said Mayor," etc., "and against any and all actions, whether groundless or otherwise, which may be brought by the said McGann against the said Mayor,” etc., “and will pay, satisfy and discharge any and all judgments which may be recovered by the said James McGann against the Mayor," etc., "in any such action or actions, together with all costs, charges, interest and expenses therein or connected therewith.” The judgment against the city was entered on the 14th day of May, 1898, and on or about the 6th of January, 1899, the city brought an action against this plaintiff, as defendant, and his sureties, upon the special undertaking above recited, to recover the sum of $1,770 paid to McGann under the judgment. Of this second action the defendant received telephonic notice, but likewise refused to intervene on behalf of the assured. This action was subsequently settled, and the claim paid, on October 24, 1900. The present action was begun on November 5, 1900, and by it the plaintiff seeks to recover the sum of $1,500, being the amount of the policy of indemnity first above described. Upon the close of the trial the jury were directed to render a verdict upon two specific questions: First. Did Mr. Smyth, one of the attorneys for the defendant, defend the action of McGann against the city of New York solely for the city, or on behalf of the plaintiff? Second. Did the plaintiff, through Mr. Kellogg, give notice to Mr. Smyth of the commencement of the action by the city against the plaintiff over the telephone? The jury rendered a verdict by finding in answer to the first that Mr. Smyth acted solely

for the city, and by giving an affirmative answer to the second question. This verdict was taken subject to the opinion of the court, pursuant to section 1185 of the Code of Civil Procedure.

The plaintiff contends that by reason of the failure and refusal of the defendant to defend the actions on behalf of the plaintiff brought by McGann against the city, and by the city against the plaintiff, it cannot now question the plaintiff's liability for damages on account of the injury sustained by McGann. The plaintiff upon the trial introduced in evidence the judgment roll in the case of McGann against the city, but offered no proof dehors the record as to how the accident happened; that is, whether by the negligence of himself or of his employé, or that of the subcontractor or his workmen. The policy indemnified the plaintiff only against liability for personal injuries received by the public, "caused by the assured or by the assured's workmen, but not caused by a subcontractor or a subcontractor's workmen." It follows, therefore, that unless the plaintiff proves that the injury, and hence his liability, resulted only from the negligence of himself or of his employé, and unless the plaintiff proves, as alleged in his complaint, that McGann's injury was not caused by a subcontractor or a subcontractor's workmen, no recovery can be had against the defendant. Mayor v. Brady, 151 N. Y. 611, 45 N. E. 1122. The proofs show that McGann was injured by falling into the excavation, which was unguarded, and that this excavation was part of the work which Kane & Son, the subcontractors, had agreed with the plaintiff to do, and there was no evidence that the work of the subcontractor had been completed at the time. It may well be that the negligence of the subcontractor or his workmen was the cause of the accident. Mayor v. Brady, supra, recognizes the necessity of independent proof as to the negligence of the contractor in order to establish that fact in this action, and that such fact is not shown by merely putting in evidence the judgment roll against the city. The complaint in that action does not even charge negligence of this plaintiff or his agents. This omission in the proofs, I think, is fatal to a recovery in this action.

Another serious objection to plaintiff's claim is the fact that the recovery against the plaintiff by the city was had by reason of an action brought upon the undertaking given for the purpose of procuring a release of moneys tied up by the city, in which the plaintiff agreed to indemnify and hold harmless the city from and against any claim on account of the injuries to McGann, "whether groundless or otherwise," and "to pay and discharge any judgment recovered on account of such claim, whether groundless or otherwise.” It is a complete answer to the contention that the defendant's failure to defend the action brought by the city against the plaintiff on the undertaking precludes the defendant from questioning the liability of the plaintiff on account of a claim for damages arising from injuries within the contemplation of the policy, to say that any defense which the defendant might have interposed in that action, based upon the absence of negligence of this plaintiff, or upon the negligence of a subcontractor or his workmen, would have been futile. It would not have been available in that action, because the undertaking bound

and 118 New York State Reporter

plaintiff, whether the claim of McGann was “groundless or otherwise."

In view of my conclusions on the points discussed, it becomes unnecessary to refer to the other interesting questions raised in this case. A judgment is directed to be entered for the defendant, with costs.

Judgment for defendant, with costs.

(41 Misc. Rep. 389.)

In re ROGERS. (Supreme Court, Special Term, Erie County. September, 1903.) 1. LOCAL OPTION ELECTION-SUBMISSION AT SPECIAL ELECTION.

Under Liquor Tax Law, 16 (Laws 1900, p. 855, c. 367), providing that if, for any reason except the failure to file a petition, the propositions provided for in the liquor tax law shall not have been properly submitted to the electors at the regular town meeting, such propositions shall be submitted at a special town meeting, there is no authority for ordering a special town meeting when the submission is alleged to have been improper because the petition was not signed and acknowledged by the requisite number of electors. Application of Lewis Rogers for an order directing a special town meeting to be held in the town of Carlton, under the provisions of the liquor tax law. Denied.

W. C. Ramsdale and Thomas A. Kirby, for petitioner.
Royal R. Scott, for State Commissioner of Excise.

KRUSE, J. It is contended on behalf of the petitioner that the town meeting held on March 10, 1903, at which the questions provided for in section 16 of the liquor tax law (Laws 1900, p. 855, C. 367) were submitted, was invalid for the reason that the petition which was filed in the office of the town clerk was not signed and acknowledged by the requisite number of voters. A former application was heretofore made by a resident of the town for a writ of certiorari, requiring the county treasurer to issue a liquor tax certificate, attacking said election upon the same ground, and contending that it was void and of no effect, and that the status of said town as regards the sale of intoxicating liquors was not affected thereby, such sale being permitted under a former town meeting. This application was denied upon the ground that the duties of the county treasurer were ministerial only, and that he was controlled by the certificate of the town clerk which was filed with him, showing upon its face that such an election had been held. If this election is illegal and void, it would seem that persons who desire to avail themselves of the right to traffic in liquors are entitled to relief in some form establishing that right, yet I think I am compelled to deny this application for want of authority under the provisions of the liquor tax law. The petitioner seeks to have this question resubmitted and infuse life into this defective petition by the aid of an order of this court under the provisions of section 16 of that law, which reads as follows:

"If for any reason except the failure to file any petition therefor, the four propositions provided to be submitted herein to the electors of a town shall

not have been properly submitted at such biennial town meeting, such propositions shall be submitted at a special meeting duly called. But a special town meeting shall only be called upon filing with the town clerk the petition aforesaid and an order of the supreme or county court, or a justice or judge thereof, respectively, which may be granted upon eight days' notice to the State Commissioner of Excise, sufficient reason being shown therefor."

Counsel for petitioner lay stress upon the word "any" in the clause "except the failure to file any petition therefor," and suggest that, although the petition does not comply with the statute as regards the number of petitioners and the acknowledgment by them as required, it is sufficient to afford the relief sought by this proceeding; that the statute does not say, in terms, “the” petition, and therefore contend that the defect in this petition, although it forms the very basis of calling the special town meeting, may be cured by an order of the court. But it is to be observed that the section referred to expressly provides that a special town meeting shall only be called upon filing with the town clerk the petition aforesaid and an order of the court. It would seem that this petition must be a substantial compliance with the terms of the act, to afford any basis for a special town meeting. And if it does not so comply with the law, no validity can be given to it by the aid of the order of the court. Of course, it need not be suggested that, if the petition was a substantial compliance with the provisions of this section, then the election already had, which was adverse to the right to traffic in liquors, was effective, and that the petitioner, or any other person designing to traffic in liquor, is entitled to no relief I think the application must be denied upon the ground of want of power to make the order. The application is denied accordingly, without costs.

Application denied, without costs.

In re SILKMAN. (Supreme Court, Appellate Division, Second Department. November 25, 1903.) 1. SURROGATE-PRACTICE AS ATTORNEY-VIOLATION OF CONSTITUTION-SUSPEN

BION.

Since Const, art. 6, 8 20, forbidding a surrogate to practice as an attorney in any court of record, ipso facto suspends him from practice on his election, an order of the Supreme Court suspending him generally

from practice is superfluous. 2. SAME-DISBARMENT-JURISDICTION.

Code Civ. Proc. & 67, providing that an attorney guilty of any "deceit, malpractice, crime or misdemeanor" may be suspended from practice or removed from office by the Appellate Division, does not cover the case of a surrogate who practices as an attorney in violation of Const. art. 6, § 20, especially as his offense is committed in his capacity of surrogate,

and not as an attorney. S. SAME.

While the Appellate Division of the Supreme Court may have inherent power to discipline attorneys for improper conduct exhibiting turpitude or loss of good character, yet in view of Const, art. 6, & 11, providing for the removal of judicial officers, including surrogates, by the Senate on recommendation of the Governor, preceded by a hearing, etc., and section 20, providing that no one shall be eligible to the office of surro

84 N.Y.S.-65

and 118 New York State Reporter gate who is not an attorney, that tribunal is without power to disbar a surrogate who violates section 20, forbidding surrogates to practice as attorneys.

Goodrich, P. J., dissenting. Original proceedings for the suspension or disbarment of Theodore H. Silkman, as attorney and counselor at law. On return to an order to show cause. Motion for suspension denied.

Argued before GOODRICH, P. J., and BARTLETT, WOODWARD, HIRSCHBERG, and HOOKER, JJ.

James M. Hunt, for the motion.
J. Rider Cady, opposed.

HIRSCHBERG, J. This proceeding was instituted by Mr. James M. Hunt, an attorney and counselor of the Supreme Court, by the presentation of verified charges against the Hon. Theodore H. Silkman, surrogate of the county of Westchester, accusing him, in the precise language of the charges, of "practicing as an attorney and counselor at law in the Supreme Court, Westchester county, and before this Appellate Division of the Supreme Court, said Supreme Court being a court of record of this state, in violation of the provisions of section 20 of article 6 of the Constitution of this state, and in violation of his official oath as surrogate of the county of Westchester, which oath was taken pursuant to the provisions of section I of article 13 of the Constitution of this state." An order was duly issued upon these charges requiring Mr. Silkman to show cause why an order should not be made suspending him from practice during the continuance of his term of office as surrogate, and why such other and further order should not be made as to the court might seem just. A hearing having been had upon the return of the order to show cause, we are now called upon to dispose of the proceeding.

The provision of the Constitution which Mr. Silkman is charged with violating is the following, contained in section 20 of article 6, viz.: "Nor shall any judge of the Court of Appeals, or justice of the Supreme Court, or any county judge or surrogate hereafter elected in a county having a population exceeding one hundred and twenty thousand, practice as an attorney or counselor in any court of record of this state, or act as referee.” Mr. Silkman was elected surrogate at the general election in the year 1900, at which time it is claimed that the population of the county of Westchester largely exceeded the prescribed number; but it is contended in his behalf that the word

population” as used in the section of the Constitution cited is to be confined to the citizen inhabitants, excluding aliens, and that so construed the population of the county at the time of his election was within the limit of one hundred and twenty thousand.

The question has been argued with force and ability on either side, but in the view taken of our jurisdiction we do not deem it necessary or proper to decide it. Assuming that at the time of Mr. Silkman's election it be true that the county of Westchester contained a population exceeding 120,000 within the meaning of the section referred to, then it necessarily follows that upon taking office on January 1,

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