*

legal, denying its validity or legality absolutely, or upon information and belief." The position of the plaintiffs' answer interposed before the surrogate, and on which they rely, "alleges, upon information and belief, that before the date of the assignment of said judgment to the said Porter M. Hinman, and in or about the month of January, 1883, the said William M. Ashley paid to the said Charles O. Ashley the full amount of said judgment, and interest thereon." This answer was duly verified. The Code names the paper to be filed an "answer." If it had required an affidavit setting forth the facts, etc., it would have been an indication of an intention to require a more specific statement of facts than is shown by the use of the word "answer," which is usually the name of a pleading. It is not questioned here that the present answer would have been a good answer of payment in an action by Lamb upon the judgment. The "answer" of title to real property under section 2951 of the Code affords an analogy for illustration. The language there is: "The defendant may * * set forth in his answer facts showing that the title to lands will come in question." Upon such answer, and the giving of an undertaking, the action before the justice is to be discontinued. Section 2954. The above section 2951 has never been held to require such answer of title to set forth the specific facts showing how or upon what the answer is based, or by what proofs it is to be supported; but it is sufficient if its allegations are such that under the rules of pleading the issue of title is made. Main v. Cooper, 25 N. Y. 180; Heath v. Barmore, 50 N. Y. 302. By the Code, § 481, a complaint is to contain "a plain and concise statement of the facts constituting such cause of action," and an answer must contain (section 500, subd. 2) "a statement of any new matter constituting a defense or counter-claim, in ordinary and concise language.' This difference in language has never been held to create a different rule of pleading in an answer from that prescribed for a complaint as to manner in which facts are to be stated. Section 2710 of the Code also provides for the dismissal by the surrogate of proceedings in regard to property. "In case the person so cited shall interpose a written answer, duly verified, that he is the owner of said property, or is entitled to the possession thereof by virtue of any lien thereon or special property therein, the surrogate shall dismiss the proceedings as to such property so claimed." This section does not require that the answer shall "set forth the facts which show that it is doubtful," etc., as in section 2718, but prescribes quite a general form in which the matters are to be stated to oust the surrogate of his jurisdiction. My conclusion is that the answer interposed before the surrogate was sufficient, and required the surrogate to dismiss Mr. Lamb's petition; that the "setting forth the fact" of payment in the form used showed that it was doubtful whether the petitioner's claim was valid and legal, and it was a denial of its validity or legality. In other words, I hold that it was not necessary in this answer to give a bill of particulars, or plead the evidence. After the filing of that answer the surrogate had no further jurisdiction, except to order the dismissal. This conclusion is supported by the opinion of Surrogate ROLLINS in Smith v. Murray, 1 Dem. Sur. 34, where a legatee asked that executors pay a legacy to her. The answer alleged that at the time of decedent's death the legatee was indebted to decedent in a larger sum than the legacy, and the surrogate held that the answer very distinctly denied the validity of the petitioner's claim, and he dismissed the application. The motion must be denied, with $10 costs of motion to the party prevailing in the action, and to abide the final adjudication as to costs of the action.

STATEN ISLAND RAPID TRANSIT Co. v. MAYOR, ETC., OF THE CITY OF NEW YORK.

(Supreme Court, Special Term, New York County. November 10, 1888.)

1. FERRY-LEASE-PERCENTAGE ON RECEIPTS-REDUCTION OF RATES.

Defendant leased a ferry to plaintiff for a yearly rent equal to 5 per cent. of the gross ferriage receipts. At that time the ferry ran to a point on, and thence along, the opposite shore, and made several stops; the whole fare being 10 cents. Plaintiff afterwards constructed a railway, and thereafter ran its boat to one point only, whence it conveyed passengers by rail, charging 10 cents for the whole trip, or 5 cents each on the ferry and railroad. The evidence showed 5 cents to be a fair apportionment for the ferriage. Held that, there being nothing in the lease to the contrary, plaintiff had a right to reduce the ferriage, and defendant was only entitled to a percentage of ferriage receipts calculated on the basis of 5 cents for each passenger carried on the ferry after the railroad was used.

2. SAME-GROSS RECEIPTS-How ESTIMATED.

Twenty per cent. of the gross receipts of the ferry and railroad was estimated as the amount of the ferriage receipts, by comparing the returns of the conductors, which, after the settlements were made with defendant, were destroyed. The estimate, which appears reasonable, having been acquiesced in by defendant, who received the rent on that basis for some time, and there being no way of ascertaining definitely the number of persons carried, such settlements will not be disturbed. 8. SAME.

Plaintiff having contracted to carry persons for an amusement company, charging 10 cents ferriage, of which it gave the company 2 cents, must account to defendant for percentage on the full fare of 10 cents.

Action by the Staten Island Rapid Transit Company against the mayor, aldermen, and commonalty of the city of New York, to construe a lease. W. W. Macfarland, for plaintiff. D. J. Dean and W. L. Wersley, for defendant.

INGRAHAM, J. No objection is taken to the form of this action, and, as I understand the parties, the object is to have a construction of the lease and of the plaintiff's liability under it. The first lease in controversy was executed on the 15th of May, 1883, and thereby the defendants leased to the Staten Island Railroad Company the privilege or franchise to run a ferry from the foot of Whitehall street, in the city of New York, over and across the waters of the New York bay or harbor, to and from Staten island, Richmond county, together with certain wharf property situate in the city and county of New York, for 10 years from May 1, 1883; the lessee paying therefor the yearly rent of a sum equal to 5 per centum on the gross receipts for the transportation of persons, horses, etc., over and upon the said ferry, and, in addition thereto, for the first five years, $5,000, and for the second five years, $10,000. The lease further provides that the lessee will make and deliver to the comptroller of the city of New York, whenever required, a verified statement of the actual gross receipts for ferriages received by the lessee during the term or terms designated by the comptroller, wheresoever collected, and that the lessee shall keep regular books of account, showing the daily gross receipts of the said ferry, and the expenses thereof, and allow the said comptroller to examine the same. At the time the lease was made the ferry-boats ran from New York to Tompkinsville, on Staten island, and then along the eastern shore of the island, making several stops, to Clifton, and the ferriage was 10 cents for each passenger. Prior to March 1, 1886, the Staten Island Railroad Company, with the consent of the comptroller, had assigned the lease to the plaintiff in this action, and subsequent thereto the plaintiff had constructed à railroad on Staten island; and on March 1, 1886, the termination of the ferry was established at St. George, a place on the north shore of the island, and ran its boats to that point only, carrying passengers to other points on the island by its railroad. Since that time the uniform charge on the boats and railroad is 10 cents for each passenger. At about the same time, at St. George, an amusement company established amusement grounds, and, under the arrange

Sup. Ct.] STATEN ISLAND RAPID T. CO. v. MAYOR, ETC., OF NEW YORK 681

ment between the ferry company and the amusement company, it was agreed that to all persons visiting the grounds the ferry company should charge 10 cents, of which 8 cents should be retained by the ferry company, and 2 cents paid to the amusement company as a subsidy. The fare from point to point on the railroad was established by the plaintiff at 5 cents; and in making its returns for the ferriage to the city, upon which the percentage should be collected, it charged itself with 5 cents for each passenger, as ferriage between New York and Staten island, except those passengers carried to the amusement grounds at St. George, for each of which passengers the company charged itself 8 cents, and upon such amounts the 5 per cent. was duly calculated and paid to the city; and these amounts were received by the city as a compliance with the contract, up to January 1, 1888. Subsequent to January 1, 1888, the defendant claimed that it was entitled to 5 per cent. upon the total amount received by the plaintiff, including the amount charged for transportation on the ferry and on the railroad, and including the 2 cents for each passenger paid to the amusement company, and that the plaintiff not having paid that percentage in full, it claimed to annul the lease. By the terms of the lease the amount that the defendant was to receive as rent was a sum equal to 5 per cent. of the gross receipts for the transportation of passengers, etc., over and upon the said ferry. There is no provision in the lease that would prevent the plaintiff from reducing the fare for ferriage to 5 cents, and so reduce the revenue coming to the defendant. The defendant's claim, as stated in the brief submitted, is that "they are entitled to percentage upon the gross receipts from persons crossing the ferry," but that is not the basis upon which the lease provides that the rent should be calculated. There is nothing in the lease that prevents the plaintiff from charging to those going to St. George 10 cents for ferriage, and for those going beyond, 5 cents on the ferry. Nor is there any reason why such a discrimination should impose upon the plaintiff the burden of paying to the city a percentage upon the amount received by it for railroad transportation. The evidence shows that the apportionment is, considering the expenses of the railroad and ferry, a reasonable one, and I can see no provision in the lease which would entitle the defendant to a percentage upon the amount charged to passengers for railroad transportation.

By the eighteenth statement of fact it is provided that on all passenger business between St. George and New York city the defendant has received its percentage upon 10 cents for each passenger carried over the ferry between these points, except as to such passengers as went to the amusement grounds at St. George; and as to those latter passengers, each of whom paid 10 cents for ferriage from or to St. George, to or from New York city, the defendant's percentage has been calculated and paid upon 8 cents, instead of 10 cents, for each of such passengers, and 2 cents for each passenger has been paid by the plaintiff to the Staten Island Amusement Company, Limited, as a subsidy. It is here admitted that each of the passengers that went to the amusement grounds paid 10 cents for ferriage; and, as the lease provides that the percentage of the city is to be calculated upon the gross receipts for the transportation of passengers, etc., over and upon the said ferry, and I can see no reason why the amount paid for ferriage is not the gross amount received for the transportation of persons using the ferry,-whether the company paid the amount it received to the amusement company or to its stockholders is entirely immaterial, so far as the city is concerned. It was entitled to its percentage upon the gross receipts for transportation; and, under the form of the admission here, the company received the amount of 10 cents from each passenger for transportation upon the ferry. As to the percentage on the receipts for passengres carried over the old railroad, it appears that the estimate of the 20 per cent. of gross earnings on both ferry and railway, as the amount paid for ferry transportation, was obtained by a comparison of the re

turns of the conductors, which, after the settlements with the city, were destroyed. I see no reason to doubt that the proportion of 20 per cent. of the gross receipts from passengers carried over both ferry and railroad was fair, and allowed the city all that it was entitled to. As before stated, these amounts had been paid by the plaintiff to the city for a considerable period, and received by the city without objection, and it would be extremely unfair now to throw upon the plaintiff any additional burden because, at this late day, it is unable to prove the exact number of persons carried over its ferry. From the facts before me I think the lease should be construed as indicated in the foregoing opinion. The form of the judgment to be entered can be settled on notice.

WINSLOW v. STATEN ISLAND R. T. R. Co.

(Supreme Court, Special Term, New York County. October 15, 1888.) CORPORATIONS-ACTIONS-SERVICE OF SUMMONS.

Under Code Civil Proc. N. Y. § 431, providing that personal service of a summons on a domestic corporation shall be by delivering a copy to the president or other head of the corporation, its secretary or clerk, cashier or treasurer, or a director or managing agent, service on an assistant treasurer, holding none of the enumerated positions, is irregular and void.

At chambers. On motion to vacate service of summons.

Qui tam action for a penalty, brought by Francis A. Winslow against the Staten Island Rapid Transit Railroad Company. The summons was served on Edward Curry, assistant treasurer of the corporation.

John A. Amundson, for plaintiff. MacFarland, Boardman & Platt, for defendant.

O'BRIEN, J. The Code provides that personal service of a summons upon a defendant, a domestic corporation, must be made by delivering a copy thereof to the persons specially enumerated in section 431. The affidavit in this case shows that the person upon whom service was made was the assistant treas urer, upon whom it is not provided the summons can be served. For the reason that he was not the "president or other head of the corporation, the secretary or clerk to the corporation, the cashier or treasurer, or a director or managing agent," the motion to set aside the service of the summons herein as irregular and void must be granted.

PRINCE MANUF'G Co. v. PRINCE'S METALLIC PAINT Co. (Supreme Court, Special Term, New York County. October 16, 1888.) CONTEMPT-ACTS COMMITTED IN ANOTHER STATE-DISOBEYING INJUNCTION.

It is a violation of an injunction to use a prohibited trade-mark and name for goods, though they are made, sold, and shipped at defendant's place of business in another state, of which both plaintiff and defendant are resident corporations, and to which defendant, who had been doing business in the state wherein the injunetion is pending, has removed since it was granted.

At chambers. On motion to punish for contempt.

Action by the Prince Manufacturing Company against Prince's Metallic Paint Company to restrain the infringement of a trade-mark. A preliminary injunction was granted against the use of the name of "Prince" for the paint sold by defendant, and against the use of the trade-mark. The violations were the sales to persons in Troy, N. Y., and Boston, Mass., under the prohibited name and trade-mark, and the use of the trade-mark on barrels of paint shipped from the manufactory in Pennsylvania. Before plaintiff instituted the suit it had been refused an injunction by a Philadelphia court. Defendant had kept its principal place of business in New York, but, after the injunction was granted, removed to Philadelphia. The main facts as to the

alleged violations were not disputed, but defendant insisted that the sales and shipments were from Pennsylvania, after its removal, and hence did not violate an injunction by a New York court.

Dillaway, Davenport & Leeds, for plaintiff. John Frankenheimer, for defendant.

O'BRIEN, J. From the affidavits submitted on this motion to punish the defendant for contempt it seems reasonably clear that there has been a violation of the injunction, by the sale in Troy, and the commission of the acts charged as a violation in the shipment to Boston, and in the affixing of the trade-mark to goods at Lehigh Gap. The injunction was granted to preserve intact the subject-matter of the action, which is the right to use the trademark and designation, until the final determination of the rights of the parties by a trial. It has been strongly urged that, because both the parties to this action are Pennsylvania corporations, that this court has no power to restrain the defendants from carrying on their business in Pennsylvania in selling Prince's metallic paint with the trade-mark in question affixed thereto outside of this state. There is no doubt, however, that this court obtained jurisdiction of the action now pending in this court, and in which the injunction was issued; and while, as a rule, the power of an equity court is limited to the territorial jurisdiction of the court, disobedience to an injunction, though committed without the state, is nevertheless punishable in this action. The defendant seeks to excuse the acts complained of by disclaiming any intention of willfully violating the injunction order. The case is now on the calendar, and set down for trial for this week. It seems to me, under the circumstances, that in fixing the punishment for the contempt, which I regard as established, that a reference to determine the amount of plaintiff's damages should, if possible, be avoided, for the reason that, if judgment should be in favor of the plaintiff, a reference to ascertain the damages would be necessary, and such damage which plaintiff may have suffered by a violation of the injunction could be then ascertained. The defendant, however, should not be allowed, after disregarding the injunction, to escape unpunished. Accordingly the defendant should pay a fine of $250 within 20 days, and, in default thereof, that his answer in this case be stricken out. Ordered accordingly.

In re WHITLOCK.

(Supreme Court, Special Term, New York County. October 18, 1888.) ATTORNEY AND CLIENT-PRIVILEGED COMMUNICATIONS-WRITINGS OF THIRD PERSONS. Code Civil Proc. N. Y. § 835, which declares that an attorney or counselor shall not be allowed to disclose communications received from a client in the course of professional employment, does not apply to writings executed by third persons, and an attorney may be compelled to produce such papers, when examined as a witness, though he received them from his client.

At chambers. On motion for an order to produce papers.

Bache McE. Whitlock, an attorney and counselor at law, was examined upon commission issued by the high court of justice of England, queen's bench division, as a witness in an action brought in said court by Charles G. Francklyn against John Walter and George E. Wright. In the course of his examination he was asked to produce certain letters and writings proceeding from said Francklyn, which he refused to produce, because they had been received by him, in the course of his professional employment, from one Sir Bache Cunard, for whom he was conducting an action against said Francklyn. Whereupon this order was prayed for. Code Civil Proc. N. Y. § 835, declares that "an attorney or counselor at law shall not be allowed to disclose a communication made by a client to him in the course of his professional employment." Bangs, Stetson, Tracy & McVeagh, for the motion. Whitlock & Simonds, for the witness.