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for receiving passengers had passed, and that the greatest celerity and promptness was required on the part of those intrusted with the management of trains. It is said that the opening of the gate by the conductor was an invitation for him to enter, and that, if the conductor had not closed the gate upon him, he would have boarded the train in safety. It is true that the opening of the gate to admit the two men in front of the deceased, and their safe entrance, may have given the intestate confidence that he could enter also. But the act of the conductor, as the sequel shows, was not intended as an invitation to the intestate, and the conductor's misjudgment or negligence was one of the hazards which the intestate ran. It did not relieve him from the imputation of negligence, because he did not foresee the obstruction which would be interposed, or that, without the negligence of the conductor, the accident would not have happened.' One of the very dangers of the situation arose from the fact that all the contingencies upon which the success of the effort to enter the car depended could not be anticipated. If men will take such hazards, they must bear the consequences of their own rashness; and it is no just reason for visiting the consequences upon another that his negligence co-operated in producing the result.
We think the judgment should be affirmed.
RUGER, C. J., EARL and FINCH, JJ., concur. MILLER and DANFORTH, JJ., dissent. RAPALLO, J., taking no part.
(103 N. Y. 670)
CARD V. MANHATTAN RY. Co.
(Court of Appeals of New York. November 23, 1886.) NEGLIGENCE-CONTRIBUTORY NEGLIGENCE-BOARDING MOVING TRAIN.
Boarding a moving train is presumably a negligent act per se; following Solomon v. Manhattan Ry. Co., ante, 430. Action to recover damages for death. Judgment for plaintiff. Defendant appeals.
E. S. Rapallo, for appellant. E. W. Simmons, for respondent.
FINCH, J. The opinion recently delivered in the case of Solomon v. Manhattan Railway Co., ante, 430, substantially covers all the questions raised by this appeal, and makes it our duty to reverse the judgment of the courts below. In both cases, after the gates were shut, and the intending passenger was excluded, and the train was in motion, the injured party clung to the moving cars, and was thereby killed. In the one case the deceased had his foot upon the car step, and was obviously making a physical effort to get upon the train; in this case the trial court deemed it debatable whether the deceased was endeavoring to get upon the car, or was merely walking along by the side of the moving train, expostulating with the gateman. But disregarding all the evidence of the defense, and taking as true the plaintiff's proofs, two facts remain undisputed. After the gate was closed, and the train in motion, the excluded passenger had hold of, the stanchions of the platform, clinging to them as the train moved, while the gateman was pushing him away. Three witnesses for the plaintiff saw the accident. The wife and sister observed only the gateman pushing the deceased, at a moment when they are unable to say whether the train had started or not; but the third witness, a passenger in an adjoining car, and apparently wholly disinterested, testifies distinctly that, after the gate was slammed, and the train in motion, the deceased was holding on to the iron standard supporting the roof of the platform, while the gateinan' was trying to push him away, and that this continued until the deceased disappeared from sight. It is not material whether the act of the deceased should or should not be deemed a physical
effort to get upon the car. It was an interference with the moving train, obviously dangerous and imprudent, from which the injury resulted, and for which there was no necessity or excuse. The motion for a nonsuit should have been granted.
Judgment reversed; new trial granted; costs to abide the event.
(All concur, except DANFORTH, J., not voting, and RAPALLO, J., taking no part.)
(103 N. Y. 429)
BLAKE 0. GRISWOLD.1
(Court of Appeals of New York. November 23, 1886.) 1. CORPORATIONS-OFFICERS—EVIDENCE-BOOKS OF CORPORATION-ADMISSIBILITY.
In an action to recover from the trustee of a corporation the amount of a debt due the plaintiff on the ground that the defendant had been guilty of actual falsehood, in that he had signed a report required by the New York manufacturers' act of 1848, which stated that the capital of the corporation had been fully paid in, while in fact the defendant knew that the whole stock had been issued to one of the incorporators in payment of lands bought by him from another corporation, and by him conveyed to the defendant's company at a grossly exaggerated price, the books of the two companies are admissible in evidence, not only to prove the corporate acts of the companies, but also for the purpose of proving the defendant's knowledge of
the circumstances under which the stock was issued. 2. SAME-APPEAL-WEIGHT OF EVIDENCE.
In such an action, where the evidence tends to show that the plaintiff had actual knowledge of the true value of the lands, and of the issue of the stock therefor, the court will not disturb a verdict which finds against him on the issue whether he
was guilty of actual falsehood in signing the report. 3. SAME-EVIDENCE-MINING LANDS-PERSONS HAVING PRACTICAL KNOWLEDGE.
In such an action the testimony as to the value of the lands of persons having practical knowledge of lands of the nature of those in question-mining lands —is
admissible. On June 12, 1867, a mining company was incorporated under the name of the Kingdom Iron Ore Company of Lake Champlain; the certificate of incorporation fixed its capital at $200,000, and Richard Remington and others were the incorporators. In August, 1869, Richard Remington and two others made a certificate for the organization of a mining corporation under the name of the Iron Mountains Company of Lake Champlain, fixing its capital at $2,000,000, and naming as trustees for the first year George M. Wheeler, John A. Griswold, Jacob W. Hoysradt, Erastus Corning, Henry G. Burleigh, Caspar D. Schubarth, and the defendant, Chester Griswold. On August 12, 1869, a meeting of the trustees (Remington being one) of the Kingdom Iron Ore Company was held, and it was resolved to sell and convey to Remington certain of its real estate for the consideration of one-half the stock, and one-half ($200,000) of a certain issue of bonds of the Iron Mountains Company. On the same day the trustees of the Iron Mountains Company held a meeting, and, among other things, resolved to purchase from Remington the lands which the Kingdom Company had resolved to sell to Remington, for the entire stock of the Iron Mountains Company, and that such stock be issued to Remington therefor. It was also resolved to issue $400,000 of bonds, secured by mortgage on these same lands, and further to receive from Remington 4,000 shares of the stock, and 100 of the bonds, of $1,000 each, “to be held as the property of the company. On the twenty-fourth of August, on the issue of the stock, Remington made, without any consideration, transfers of 100 shares to the defendant and five other trustees. In December, 1869, the company negotiated a loan of $35,000, and at a meeting held on December 15, 1869, provision was made for the execution of a mortgage upon the lands to secure it; for the pledge of 70 bonds, representing $70,000, , as additional security; and for the transfer to the Jender outright of 1,000 shares of the stock of the company. At the same meeting bonds and stock representing $55,000 were voted to one of the trustees “for commissions in negotiating the loan.”
1 This case was before the court of appeals on three previous occasions. See 68 N. Y. 294, 80 N. Y. 128, and 89 N. Y. 122.,'
The plaintiff brought an action as a creditor of the Iron Mountains Company, against the defendant, to recover of him, as one of the trustees, a debt owing by said company to the plaintiff. The complaint contains three counts, each of which states a separate cause of action, namely: (1) That the company failed to make, file, and publish an annual report in January, 1870, or at any other time, as required by the manufacturers' act of 1848, under which the company was organized; (2) that said company made and filed a false report in January, 1870, which was signed by the defendant, knowing it to be false; (3) that the the trustees, including the defendant, combined and conspired together, and organized a bogus corporation, with a nominal stock of $2,000,000, represented by them to have been fully paid up in cash, whereas no part of it was so paid up, and instead thereof the same was wholly paid up in property, mines, etc., almost worthless, to the knowledge of the defendant, and that said corporation was so organized to deceive and defraud the public, and did deceive and defraud the plaintiffs, respectively, to their injury.
The report filed in January, 1870, on behalf of the corporation, is in the following terms:
“We, George M. Wheeler, John A. Griswold, Chester Griswold, and C. D. Schubath, being trustees of the Iron Mountains Company of Lake Champlain, and a majority thereof, and the said George M. Wheeler being president of said company, do hereby certify and declare that the capital stock of said company is two inillions of dollars; that said capital stock has been paid up in full; and that the debts of said company amount to the sum of $375,000, fourfifths of which is mortgage bonds. “Witness our hands this thirteenth day of January, 1870. “THE IRON MOUNTAINS COMPANY OF LAKE CHAMPLAIN.
“By GEO. M. WHEELER, Prest.
“JOHN A. GRISWOLD.
“C. D. SCHUBATH. "Sworn to before me this thirteenth day of January, 1870.
“CHARLES W. ANDERSON, Notary Public, N. Y. County.” Verdict at the special term for plaintiff, and judgment thereon. Appeal by defendant from the decision of the general term affirming.
W. C. Holbrook and M. D. Grover, for appellant, Griswold. A. Pond and R. L. Hand, for respondent.
FINCH, J. A recovery was had in this case against the defendant, under section 15 of the manufacturers' act, upon the ground that, in making the annual report required by that act, he had asserted a falsehood. The plaintiff sought to establish that the statement in the report, that the whole capital of two millions of dollars had been paid in, was not only untrue, but that the defendant knew it to be untrue when he signed the report, and so was guilty of actual falsehood. The defense pleaded was that the whole capital stock of the Iron Mountains Company had been issued to Remington in payment for a mining property bought by him of the Kingdom Ore Company. Since that purchase was claimed by the plaintiff to have been made for a far less amount, and to have been of very much less value, the issue raised involved necessarily the corporate acts of the two companies, of which their records were the natural and proper evidence.
The defendant was shown to have been a trustee or director in both companies. In the original certificate of the Iron Mountains Company he is
named as one of the trustees. That he accepted the office is fairly to be inferred from his own statement of the reason for the appointment; from the fact that he received from Remington $10,000 of the stock to enable him to act; and that, at the meeting in December, he was present, and serving as one of the trustees. His only denial in the answer is of the allegation that he remained a trustee after August, 1870; and his sworn assertion in the report of January, 1870, that he was such trustee, justified the inference to which we have referred. He was not named as a trustee in the certificate of the Kingdom Ore Company; but, while at first denying his official connection with that corporation, he afterwards, as he says, "on reflection,” admitted that he was a stockholder in it. It is not necessary to resort to or rely upon the similar admission in the answer, the proper effect of which was somewhat discussed.
It seems to be the rule that the corporate books are not only evidence of the corporate acts when those need to be proved, but are, to some extent, evidence against the stockholders who are chargeable with a knowledge of their contents. The books to which objections were taken on behalf of the defendant were the books of certificates, the stock-ledger, and the minutes of the two companies. The stock-ledger contained the names of the stockholders, the number of shares held by each, and a record of the transfers made. While not in all respects accurately complying with the requirements of the statute, it did so substantially, and is made by the law presumptive evidence of the facts recorded. The objection of the defendants was aimed principally at the book of minutes of the Iron Mountains Company. The material contents of that were the proceedings of the initial meeting of the trustees, at which the purchase of Remington was determined, and the full capital stock issued to him; and the action of the meeting held December 15, 1869, at which the defendant was present. Nothing else in the minutes appears to be material. These records were admitted by the court as showing the corporate action, and without deciding that the defendant was to be charged with actual knowledge of what transpired in his absence. To this extent, at least, they were admissible, and the ruling was correct. Two facts were to be established by the plaintiff: First, that two millions were not in truth paid for the mining lands; and, second, that the defendant had actual and not merely constructive knowledge of the fact. The records furnish some evidence bea. lg upon the first issue; and their correctness, so far as they described the action taken at the organization of the company, was explicitly proved by Burleigh, who was present at and participated in the meeting; while, as to the proceedings in December, the defendant admits his presence, and in no manner denies the correctness of the record.
There remained, therefore, in the case, the question of fact whether the defendant had actual knowledge that the two millions issued to Remington was a sham price, founded upon a large, false estimate of the lands. The defendant had seen the property. He had been over it with his father and others. He knew that it was undeveloped, and that the character and extent of its ores was an unsolved problem. He knew that the.whole capital stock was issued to Remington as vendor of the lands. He knew that, with unexplained liberality, Remington had given him, without consideration, $10,000 of the stock. He must have known, also, that the same vendor had given back to the Iron Mountains Company a large quantity of the stock, since we find him seconding his father's resolution to pledge 1,000 shares, with 70 bonds, for a loan to the company, and to give 500 shares to the officer who negotiated the loan, as a commission; and from no other source than the free gift of Remington was it possible for him rationally to trace that ownership of the company. It is not quite easy to believe that he could have advised giving a mortgage on the property, and $70,000 of the corporate bonds, and $100,000 of the stocks, for a loan of $35,000, if he was honestly convinced that the stock at par represented real dollars and full value. At all events, what he did know tended to establish the second issue, that he was guilty of actual falsehood when, in the report he signed, he declared that the full capital stock had been paid in. There was therefore a substantial basis in the evidence for the finding of the trial court, and we are bound to accept it as correct. In this respect, the case differs from Lake Superior Iron Co. v. Drexel, 90 N. Y. 87. There, upon facts somewhat similar, the verdict of the jury established good faith and honest judgment. Here the finding of fact is exactly the reverse.
The plaintiff's proof as to the comparatively small value of the mining property was very material, and was the subject of further objection on the part of appellant. One of the witnesses was Burleigh. He was a trustee of the Iron Mountains Company. He testifies to a large and valuable experience in the development of iron mines, in the transportation of the ore, and in the difficulties and uncertainties of determining its extent and quality. Doubtless that experience and knowledge led to his selection for the office he held. At all events, he was competent to testify as to the value of the property, having examined it so far as was at the time possible. When asked as to that value, he expressed the difficulty of a just answer by saying that such value was speculative, by which he plainly meant that, as a mining property and for mining purposes, its value in the result was uncertain. But it had a value, nevertheless, and beyond that belonging to it as land and for agricultural purposes, but affected by the uncertainty both as to the quality and extent of the veins. In the end he valued the furnace at $10,000, and the mining property at $50,000 or $60,000. That estimate he expressed by saying: “I might, on speculation, have paid that amount for it." This answer the defendant moved to strike out, but the request was refused; the court saying it understood him to mean that the property was not worth more than that amount. Such, undoubtedly, was his meaning, and he made no objection to the construction put upon it. It is said that he examined only a part of the property. Thit is true, but he examined it where the work was going on, and the ore was being taken out, and seems to have had all the opportunity that was really useful.
Another witness was Merriam. He had been a manufacturer of iron, and bought and sold ores for a period of 27 years. He had owned mineral lands, and sold them, but reserving the mines. He knew the property of the Kingdom Ore Company, and had owned land for a long time in its vicinity. He said that the lands in question, in August, 1869, when there was a good deal of speculation going on, and “with the attraction he had seen, might have been sold for forty or fifty thousand dollars.” On cross-examination he explained that he had been over a part of the land with a mining compass, with a view to discovering minerals, and found the same vein of ore cropping out that was on his own land. Of course, he answers that the value was speculative, from the necessity of the situation. We do not think there was error in receiving the testimony of these wit
Its force was, perhaps, intensified by the fact that the mining engineers called for the defense, while speaking quite favorably of the property, do not venture to put a value upon it, and by the circumstance that the Kingdom Ore Company sold it to Remington on the twelfth of August, 1869, for 10,000 shares of stock and $200,000 of bonds of the Iron Mountains Company, and that Remington, in his deed to the latter company, expressed the consideration at $600,000.
The judgment should be affirmed, with costs. (All concur.)