|

v. Pennock, 61 N. Y. 145, 152; Carr v. Nat. Bank & Loan Co. of Watertown, 167 N. Y. 375, 60 N. E. 649, 82 Am. St. Rep. 725; Squiers v. Thompson, 73 App. Div. 552, 76 N. Y. Supp. 734, affirmed 172 N. Y. 652, 65 N. E. 1122; Lyon v. James, 97 App. Div. 385, 90 N. Y. Supp. 28, affirmed 181 N. Y. 512, 73 N. E. 1126; Schank v. Schuchman, 212 N. Y. 352, 106 N. E. 127; Canadian Agency, Ltd., v. Assets R. Co., 165 App. Div. 96, 150 N. Y. Supp. 758; Cook on Corp. § 536.

up of three classes, deeded lands, homestead lands, and desert entry lands; that said homestead lands were lands owned by the United States of America, and that the desert entry lands were lands of the United States against which desert entry claims had been filed, but as to which title had not been completed in the claimants; that the North Sterling irrigation district, including all these lands, contained about 54,000 acres, of which about 44,000 acres were deeded lands and about 10,000 acres government lands; that the Greeley Poudre irrigation district contained only about 77,000 acres of deeded lands. The bonds were not a lien or charge of any kind against the homestead or desert entry lands. The trial court further determined that Warner represented to the plain-Term at 5 Lans. 358; Lamphere v. Lang, 213 tiffs that the irrigation works upon the Gree ley Poudre irrigation district were then completed and that water was then in the reservoir upon the North Sterling irrigation district, ready to be turned upon the land in the spring of 1911. Other representations were made by him regarding the priority of the liens and the bonded debt per acre, which need not be mentioned.

[1] These representations were untrue, as only about 60 per cent. of the work upon the Greeley Poudre irrigation district was completed as late as February 25, 1914, and there was no water in the reservoir upon the North Sterling irrigation district. The state ments regarding the bonded indebtedness and the priority of the liens were also inaccurate. By the unanimous affirmance these findings are binding upon us.

[2] They are sufficient to justify the conclusion that the plaintiffs had been led into an exchange of their traction bonds for irrigation bonds through false and misleading representations which were material, and that they were entitled to have the deal rescinded and their bonds returned.

[3] The principal point urged upon us by the appellants for the reversal of these judgments is that the plaintiff's failed to make out the causes of action pleaded; that, as they had alleged fraud they were bound to prove it, and could not recover in equity by showing merely false representations. In this we think the appellants are wrong.

The complaints, after alleging the transactions, asked that the defendants be ordered to restore to the plaintiff's, respectively, the bonds of the Union Traction Company and the Illinois Central Traction Company given in exchange for the irrigation bonds, with the interest coupons thereto attached in the same condition as when delivered to the defendants, or that the plaintiffs recover of the defendants the value thereof.

The fact that the plaintiffs have alleged fraud and deceit is not fatal to the action, provided the proof establishes misrepresentations and that these are material, influencing the bargain. Hammond v. Pennock, 61 N. Y. 145, and the report of the case in the General

N. Y. 585, 108 N. E. 82; Graves v. Waite, 59 N. Y. 156; Churchill v. St. George Dev. Co., 174 App. Div. 1, 160 N. Y. Supp. 357; Novotny v. Kosloff, 214 N. Y. 12, 108 N. E. 189.

[5] Equity will administer such relief as the exigencies of the case demand at the close of the trial. Lightfoot v. Davis, 198 N. Y. 261, 273, 91 N. E. 582, 29 L. R. A. (N. S.) 119, 139 Am. St. Rep. 817, 19 Ann. Cas. 747.

[6] The complaints having alleged causes of action in equity, and the proof offered having established facts which justified equitable relief, an adequate remedy at law could not be urged as a defense, unless pleaded. Such objection cannot be raised for the first time on motions to dismiss. Hawes v. Dobbs, 137 N. Y. 465, 470, 33 N. E. 560; Watts v. Adler, 130 N. Y. 646, 29 N. E. 131; Baron v. Korn, 127 N. Y. 224, 27 N. E. 804.

The cases in this state, cited by the appellants to sustain the proposition that the action fails unless the fraud and deceit alleged are proved, were actions at law for deceit, and not in equity for rescission.

[7] The defendants further insist that any representations made by Warner beyond those contained in the printed circular were unauthorized, and not binding upon them. having accepted the result of his efforts,

they are deemed to have adopted the methods employed to achieve the results. Taylor

v. Commercial Bank, 174 N. Y. 181, 66 N. E. 726, 62 L. R. A. 783, 95 Am. St. Rep. 564.

[8, 9] The claim that there has been a ratification of these sales or exchanges by the acceptance of one of several installments of interest does not appear to have been urged upon the trial. The exchange of the coupons for cash, which by the judgments has been credited to the defendants, did not under the circumstances constitute a waiver or ratification after knowledge of all the facts. The act was not so inconsistent with the plain[4] An action may be maintained in equity tiffs' claim for rescission as to amount to an to rescind a transaction which has been con- affirmance of the sales. The coupons were summated through misrepresentation of ma- simply turned into cash for the defendants' terial facts not amounting to fraud. Unlike benefit. If the defendants relied upon waivan action at law for damages, intentional er or ratification in the cashing of one intermisstatements need not be proved. Hammond est coupon in June, 1912, they should have

pleaded it. Grant v. Pratt & Lambert, 87 | Appellate Term which affirmed a Judgment App. Div. 490, 84 N. Y. Supp. 983. of the Municipal Court of the city of New York in favor of plaintiff, defendant appeals by permission. Reversed.

rules, the statute must be strictly construed, or deprivation in achieving prosperity, health, for the reasons that it imposes restrictions development or happiness. The existing legupon the control or management of private islative classification is not based upon the property by the owner and is both penal and existence of a license or franchise from the criminal. Its effect is not to be extended state to the proprietor of the place or to the through implication or analogy. Equally place itself; nor is it based upon the accessitrue it is, however, that the clear intention of bility of the place for the public. The places the Legislature is not to be defeated through of business of lawyers, physicians, dentists, interpretation; but beyond that clear inten- embalmers and of many other occupations tion the penalty will not be enforced. Burks are operated under licenses and are accessiv. Bosso, 180 N. Y. 341, 73 N. E. 58, 105 Am. ble for the public. Stores, shops, the studios St. Rep. 762; Butts v. Merchants' & M. or galleries of artists or photographers, and Transportation Co., 230 U. S. 126, 33 Sup. Ct. very many other places are accessible for the 964, 57 L. Ed. 1422; Woollcott v. Shubert, 217 public. It has never been, and could not be, N. Y. 212, 111 N. E. 829, L. R. A. 1916E, 248, | claimed that civil rights in behalf of the citiAnn. Cas. 1916B, 726. zer attach to those places under the existing The classifications by the Legislature, in or any prior civil rights act. Having in view civil rights statutes, of the places expressly the common advantage and benefit, the disand specifically included in the general desig-tinction between a restaurant or barber shop nations, "a place of public accommodation" or and the ordinary shop or store is not broad "a place of public amusement" or "a place of and conspicuous, but is real and indestructipublic resort" are trustworthy evidence or ble. On the other hand, many of the places explanation of the legislative meanings of specifically named in the statute are neither those designations. The original civil rights licensed nor operated under a license. statute of 1873 secured to each citizen the [2, 3] A liquor saloon is a shop or room "equal enjoyment of any accommodation, ad- wherein is kept a varied assortment of liqvantage, facility or privilege furnished by uors which are sold by the glass, drink, or at innkeepers, by common carriers, whether on retail. Having in view a place of public ac land or water, by licensed owners, managers commodation, a liquor saloon corresponds or lessees of theaters, or other places of closely with that of a tobacco and cigar shop, amusement, by trustees, commissioners, su- and corresponds generally with that of the perintendents, teachers and other officers of ordinary store or shop. It is not a place of common schools and public institutions of public accommodation within the letter or learning, and by cemetery associations." spirit of the statute. All successful occupaLaws of 1873, c. 186, § 1. This provision be- tions and every kind of business satisfies came in 1881 a part of section 383 of the Pe wants or needs of citizens; but the Legislanal Code. Laws of 1881, c. 676, § 383. ture clearly had in mind in enacting this 1893, the Legislature, retaining the substance statute that it should apply only to those it of the provision, forbade by an independent selected and named and to such others, if any, subdivision the denial, by reason of race, col- devoted to the general advantage, comfort or or, or previous condition of servitude, of the benefit, and essential or directly auxiliary to full enjoyment of the accommodations and the prosperity, health, development, or happiprivileges "of any hotel, inn, tavern, restau-ness of the citizen. Burks v. Bosso, 180 N. Y. rant, public conveyance on land or water, the 341, 73 N. E. 58, 105 Am. St. Rep. 762. ater or other place of public resort or amusement." Laws of 1893, c. 692, § 1. As thus amended, the provision has remained. Penal Law, § 514. In 1895 the statute commonly known as the Civil Rights Act was enacted. Laws of 1895, c. 1042. It applied to "inns, restaurants, hotels, eating houses, bathhouses, barber shops, theaters, music halls, public conveyances on land and water, and all other places of public accommodation or amusement." In 1913 it was amended to the language of the section 40 we have already quoted.

In

The order appealed from and the judgment of the Municipal Court and the determination of the Appellate Term should be reversed, and the complaint dismissed, with costs to appellant in all the courts.

HISCOCK, C. J., and CRANE and AN

DREWS, JJ., concur. CHASE, HOGAN, and

CARDOZO, JJ., dissent.

Ordered accordingly.

In re ATTERBURY.

BURY.

(222 N. Y. 355)

The classifications denote the character and purpose which the places deemed, within the SUFFOLK COUNTY TRUST CO. v. ATTERlegislative intention and enactment, of public accommodation, resort or amusement must possess. Those places include each of those utilities, facilities and agencies created and operated for the common advantage, aid and benefit of the people, the denial of which to any person would be a discriminatory obstruction

(Court of Appeals of New York. Jan. 22, 1918.) 1. COURTS 472(4)-SUPREME AND SURROGATE COURTS-CONCURRENT JURISDICTION. Proc. § 1903, so as to give the Surrogate Court Laws 1915, c. 641, amending Code Civ. power to fix reasonable expenses in an action of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

2. APPEARANCE 9(2)-SPECIAL OR GENERAL.
Where guardian appeared and opposed mo-
tion at Special Term on jurisdictional grounds,
and it was a disputed fact whether surrogate
had first acquired jurisdiction, the appearance
was general, although stated to be special.
3. ATTORNEY AND CLIENT 156-ORDER FIX-
ING ATTORNEY'S FEES-REMEDY.

wrongful death, did not deprive the Supreme | rectly to him. To this proceeding Mrs. PetCourt of its jurisdiction to enforce an attorney's tit and the railroad company were made parlien on petition of attorney, under Judiciary ties. Thereupon the trust company, as guarLaw, 88 474, 475 (Consol. Laws, c. 30), as to attorney's lien and enforcement, although the dian, presented affidavits in opposition to the administrator was acting under limited letters motion, asking that it be denied and that the issued under Code, § 2592, restraining admin- original order be vacated. The Special Term, istratrix from enforcing judgment until further order of the surrogate. however, granted the motion and amended the original order so that in addition to the provisions therein contained, it directed the county treasurer of Nassau county, to whom the railroad company had then paid the judgment, to pay Mr. Atterbury the amount of his lien as decreed by it. Later the trust company made an application to vacate the two orders granted by the Supreme Court. This motion was denied. An appeal was taken to the Appellate Division from all three orders by the trust company and that court reversed this last order of denial, granted the motion of the trust company, and dismissed the appeal from the first two orders. An appeal was then taken to this court from the order of the Appellate Division.

Where Special Term on motion, therefore, made order fixing attorney's compensation for services in action for death, remedy of guardian of intestate's children was not by an independent motion to vacate the order, but by direct appeal.

Appeal from Supreme Court, Appellate Division, First Department.

Petition by L. Atterbury to enforce an attorney's lien, opposed by the Suffolk County Trust Company, as guardian, and others. From an order of the Appellate Division (179 App. Div. 648, 167 N. Y. Supp. 88), reversing an order of the Special Term, petitioner appeals. Order of the Appellate Division reversed, and that of the Special Term affirmed.

Charles Green Smith, of New York City, for appellant. John M. Ward, of New York City, for respondent.

[1] The first question for us to decide is as to the respective powers of the Supreme Court and the surrogate with regard to the compensation of attorneys in actions brought under section 1902 of the Code of Civil Procedure. The right to recover damages for a death caused by negligence was first allowed in this state in 1847. Only a few years before had it been determined by our highest court that an attorney might maintain an action to recover for his services. Adams v. Stevens, 26 Wend. 451. But he had no lien

ANDREWS, J. Leon F. Pettit was killed by the negligence of a railroad company. He left a wife and minor children. Limited let-therefor. Coughlin v. N. Y. C. & H. R. R. R. ters of administration were granted to Mrs. Co., 71 N. Y. 443, 27 Am. Rep. 75. At most Pettit. She retained Mr. Atterbury to bring he had a lien on the judgment that had been an action against the railroad, but made no recovered for his costs. A lien for his servagreement with him as to compensation. The ices was first enforced because of the enactaction resulted in a judgment for the plain- ment of section 303 of the Code of Procedure tiff of something over $16,000. Mr. Atter- in 1849. Thereafter he was allowed a lien bury then presented a petition to the Su-after judgment for any compensation his clipreme Court asking it to determine and en- ent had agreed to pay him. Wright v. force the amount of his lien on the judg- | Wright, 70 N. Y. 98. In 1879 (Laws 1879, c. ment. The administratrix alone was made a party to this proceeding. On June 14, 1917, the court, with the consent of Mrs. Pettit, fixed the lien at $4,189.22, and ordered her to pay that sum out of the recovery.

542), however, the Legislature created an attorney's lien on the client's cause of action before judgment (Code of Civil Procedure, 66).

The provisions with regard to a cause of action in cases of death by negligence were altered by the Code of Civil Procedure in 1880. Section 1903 provided that the plaintiff might deduct from the recovery the expenses of the action, which must be allowed by the surrogate. Therefore, in 1887, the law stood as follows: An attorney's compensation was regulated by his agreement, express or implied, with his client. It was secured

On July 5, 1917, the Suffolk County Trust Company was made guardian of the children, and the administratrix asked permission of the surrogate to collect the judgment and distribute the proceeds, as provided by section 1903 of the Code. The order was granted, except that the surrogate, ignoring what had been done at the Special Term, directed that Mr. Atterbury be paid $1,782.22 in full satisfaction of his claim. Mr. Atter- by a lien on the cause of action. He might bury then again applied to the Supreme Court, setting forth the facts and asking that the original order be amended by directing the railroad company to pay the amount the An executor or administrator might bring court had fixed as Mr. Atterbury's lien di- an action to recover for the negligent kill

sue to establish and enforce such a lien. Fischer-Hansen v. Brooklyn Heights R. R. Co., 173 N. Y. 492, 66 N. E. 395.

ing of his intestate. From the judgment so which it possessed for many years to fix and recovered he might deduct the expenses of enforce an attorney's lien by action or of the the action which the surrogate must allow later but well-established power to do the him on the accounting. With the law in same thing upon petition. Had this been the this condition we held explicitly that the ex-purpose we think language apt and decisive ecutor or administrator had the power to em- would have been used. The exercise of conploy an attorney and to make an agreement current jurisdiction by different courts is with him for reasonable compensation. not a novelty. It is this concurrent jurisdicWhen so employed the attorney had a lien tion which is now possessed by the surrogate on the cause of action for the amount agreed and by the Supreme Court. upon, and we enforced that lien in an action in the Supreme Court. Lee v. Van Voorhis, 78 Hun, 575, 29 N. Y. Supp. 571, affirmed upon the opinion of Haight, J., below, 145 N. Y. 603, 40 N. E. 164. In other words, we refused to except this statutory action from the general rule.

through the fraud or dishonesty of the plaintiff. To this end a bond is required before the judgment is paid to him. But the next

Our conclusion is not affected by the fact that in this case as, perhaps in most cases of the same character, the plaintiff is acting under limited letters issued under section 2592 of the Code which restrain the executor or administrator from compromising the action or enforcing any judgment until the furIn 1899 section 66 of the Code was amend-ther order of the surrogate. The object of ed (Laws 1899, c. 61) so as to cover special this section is to protect the persons ultiproceedings, and a clause was added giving mately entitled to the recovery from loss the court power upon the petition of either the client or the attorney to determine and enforce the lien. In this form it has been carried to sections 474 and 475 of the Judi- of kin are only entitled to the residue after ciary Law enacted originally in 1909. The remedy so provided was not exclusive, but cumulative (Fischer-Hansen v. B. H. R. R. Co., supra), and the fact that no jury trial is provided does not make it unconstitutional (Matter of King, 168 N. Y. 53, 60 N. E. 1054). Meanwhile section 1903 of the Code had remained unchanged. In 1911, however, it was amended by the insertion of the word "reasonable"-so that the plaintiff might deduct the reasonable expenses of the action. We do not understand that the existing law was altered. The word "reasonable" was always implied.

all proper expenses are paid, and the Supreme Court in no way interferes with this purpose if it fixes the amount of the lien to which the attorneys are entitled, and orders its payment directly by the defendant.

It is suggested that if two courts have concurrent jurisdiction, the one that first acts has thereafter exclusive jurisdiction in the matter. It is said that in the case at bar such jurisdiction was first acquired by the surrogate. It is a sufficient answer to this proposition that while the legal statement is correct the fact was disputed as to whether such proceedings were taken in the Nor do we understand that either before Surrogate's Court as gave him jurisdiction. or after 1911 any jurisdiction was conferred We must assume that the Special Term decidupon the surrogate to determine disputes ed this question in favor of the appellant, as to compensation between attorneys and and that as the order is reversed solely on clients. The surrogate acted on the account-questions of law that finding of fact remains ing between the executor or administrator undisturbed. It is also said that the infants and the person on whose behalf the action was brought. If on such an accounting it appeared that the amount paid an attorney was reasonable, it was to be allowed. If it was excessive the executor or administrator bore the loss. But if a court of competent jurisdiction had determined the amount of the lien to which the attorney was entitled, then the surrogate was bound by that finding. There were obvious disadvantages in this procedure. The attorney could not be safely [2, 3] We do not think it is necessary to paid, unless the amount had been fixed ju- determine whether in a proceeding in the dicially either by an action or by a special Supreme Court to fix the lien of the attorney proceeding. So, unnecessary expense was in- those persons ultimately interested in the curred. Finally, in 1915, the surrogate was judgment must be made parties. The facts given the power to fix the reasonable ex- do not sustain the contention of the respondpenses of an action summarily. Code, § 1903. ent. It appeared upon the second motion and This was intended to confer upon him a pow-it opposed that motion upon all the grounds er that he did not before possess, the power here argued, and asked that it be denied. to determine disputes between the attorney That, although it stated that it appeared speand client upon notice to both. But there is nothing in the act showing an intention to deprive the Supreme Court of the jurisdiction

were necessary parties to the original order obtained in the Supreme Court; that.no guardian to protect their interests had then been appointed; that as to them that order was ineffectual; that although the guardian had been appointed, it was not made a party to the proceedings which resulted in the second order; that, therefore, the motion of the guardian to vacate the original orders should have been granted.

cially, was a general appearance on the motion. It was so treated in the recitals contained in the order. When, therefore, an or