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(108 Misc. Rep. 177)

MACKENZIE et al. v. SEABOARD NAT. BANK et al. *

(Supreme Court, Special Term, New York County. July, 1919.) DISCOVERY 47—VACATION OF ORDER FOR EXAMINATION BEFORE TRIAL.

Where one defendant to an action for damages for conversion of stock had previously been sentenced on his conviction of larceny thereof, and the only special circumstances rendering his examination before trial necessary were those relating to his release on parole, the order for examination would be vacated, where his deposition was sought to be taken on separate trial of issues raised by answer of other defendants, in view

of Prison Law, $ 214, and Code Civ. Proc. $S 882, 2008. Action by Charlotte L. Mackenzie and Romeyn Berry, as trustee under a certain trust, against the Seaboard National Bank, Arthur F. Luke, Henry W. Banks, Jr., and John L. Weeks, partners composing the firm of Luke, Banks & Weeks, Richard J. Hartman and another, On motion by defendants Luke, Banks, and Weeks for vacation of an order for the examination of defendant Hartman before trial. Granted.

See, also, 184 App. Div. 3, 171 N. Y. Supp. 1002.

Morris, Plante & Saxe, of New York City (Charles E. Mahony, of New York City, of counsel), for plaintiffs.

White & Case, of New York City, for defendants Luke, Banks, and Weeks.

LUCE, J. The defendants Luke, Banks, and Weeks apply for the vacation of plaintiffs' order for the examination of Richard J. Hartman, a defendant, before trial. The action is to recover $297,912.64 damages for the conversion of 1,104 shares of Singer Manufacturing Company stock. The judgment for plaintiffs on a previous trial was reversed. 184 App. Div. 3, 171 N. Y. Supp. 1002.

An order entered February 10, 1917, provided for a separate trial of the issues raised by the answers of the defendants Seaboard National Bank, and Luke, Banks, and Weeks. On May 24, 1919, the action against the Seaboard National Bank was discontinued; thus the separate trial will be only the issues raised by the answer of the defendants Luke, Banks, and Weeks, and it is upon that trial that the deposition of Hartman is sought to be taken. In February, 1915, Hartman was convicted of the crime of the larceny of the 1,104 shares of stock of the Singer Manufacturing Company, and was sentenced to state's prison for a maximum term of 9 years and 7 months, and for a minimum term of 5 years. In March, 1919, Hartman was admitted to parole, and is at No. 470 West Delavan street, Buffalo. The order required the warden of the Great Meadows prison to produce Hartman for examination at that prison. The order is challenged by Luke, Banks, and Weeks. (a) Hartman is not a party defendant upon the trial of the issues raised by their answers; (b) no facts are shown to warrant Hartman's examination as a third party before trial.

The objection that Hartman is not a party to the litigation of the issues raised by the answer of Luke, Banks, and Weeks is amply sustained cm For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

*Order affirmed 189 App. Div, 931, 178 N. Y. Supp. 902.

(178 N.Y.S.) by the authorities. Sharp v. Hutchinson, 48 N. Y. Super. Ct. 101; Seeley v. Clark, 78 N. Y. 220. The plaintiffs maintain that Hartman is still a convict, subject to prison discipline, still serving the sentence of the court, and that these facts, constituting his present status, are the special circumstances which render it proper that he should be examined as a third party before trial. The defendants contend that, even if still a prisoner serving a sentence, Hartman may be produced at the trial upon a writ of habeas corpus ad testificandum, as provided by section 2008 of the Code of Civil Procedure, and if not under confinement he is subject to subpoena. The able and diligent counsel have cited no authorities upon this question directly in point. The cases of People ex rel. Clark v. Warden, 39 Misc. Rep. 113, 78 N. Y. Supp. 907, holding Parole Law constitutional, and Matter of Gargan v. Sculley, 82 Misc. Rep. 667, 144 N. Y. Supp. 205 (a maximum sentence for life, minimum 20 years, was, under Domestic Relations Law [Consol. Laws, c. 14]a life sentence) furnish but little aid. Section 214 of the Prison Law (Consol. Laws, c. 43) provides that a prisoner, while on parole, remains "in the legal custody and under the control of the agent and warden of the state prison from which he is so paroled, until the expiration of the maximum term specified in his sentence,

or until his absolute discharge as hereinafter provided.”

The Attorney General (Report 1910, p. 886) held a prisoner on parole in the actual custody of the agent or warden of a state prison should not be surrendered to the authorities of the United States or other state for a crime committed in another state. By the terms of the statute Hartman is in the legal custody and under the control of the agent and warden of the Great Meadows prison, and it is therefore assumed he is not subject to a subpæna. By the same reasoning, he can be produced upon the trial by habeas corpus ad testificandum. If the witness' disposition were produced at the trial, before it could be read there must be proof that he is unable to attend by reason of his insanity, sickness, or other infirmity, or that he is in a prison or jail, or he is absent from the state. Code Civ. Proc. § 882. The jail or prison there mentioned must be one without the jurisdiction of the state, since if in a state penal institution his attendance can be compelled as provided in section 2008 of the Code. The only special circumstances which render his examination before trial necessary are those relating to his release on parole. These circumstances are not sufficient, since upon the trial it could not be shown that his attendance cannot be secured. The motion is granted, with $10 costs, and the order of June 10, 1919, for the examination of Richard J. Hartman, is vacated.

Motion granted, with $10 costs.

(109 Misc. Rep. 38)

NIAGARA GORGE R. CO. V. GAISER. (Supreme Court, Special Term, Niagara County. October, 1919.) 1. CARRIERS 7-RIGHT OF PUBLIC SERVICE COMMISSION TO ISSUE CERTIFI

CATES FOR OPERATION OF BUS LINES.

Laws 1919, c. 307, amending Transportation Corporations Law, $ 26, restored to a considerable extent the jurisdiction of the Public Service Commission granted by Transportation Corporations Law, 8-25, as enacted in 1913, of which the commission had been deprived by Laws 1915, c. 667, and gave every village and town the option to bring itself within the provisions of section 26, as amended, requiring from the commission local consents and certificates of public convenience and necessity for the

operation of bus lines. 2. CARRIERS O7_OPERATOR OF BUS LINE COMPETING WITH STREET BAILBOAD IN

VILLAGE A COMMON CARRIER.

Operator of bus line, partly in village and competing with street railway, held to have become a common carrier under Laws 1919, c. 307, amending Transportation Corporations Law, $ 26, so that he was under Public Service Commissions Law, $ 53, requiring that he obtain certificate of public convenience and necessity before exercising a franchise granted

by the village. 3. STATUTES Ow181(2)-STATUTE WILL NOT BE CONSTRUED TO MAKE IT MEAN

INGLESS.

A statute will not be construed, so as to render it meaningless and in. effective for any purpose. Action by the Niagara Gorge Railroad Company against Edson U. Gaiser. Judgment on the pleadings for plaintiff, directing issuance of permanent injunction.

George C. Riley, of Buffalo, for plaintiff.

Tuttle, Rice & Stockwell, of Niagara Falls (Alfred W. Gray, of Niagara Falls, of counsel), for defendant.

MARCUS, J. This action was commenced July 26, 1919, to restrict the operation by the defendant of a bus line through the village of Lewiston, Niagara county, as a part of a route paralleling plaintiff's railroad from 125 Main street, in the city of Niagara Falls, to the village of Lewiston.

An order to show cause for a temporary injunction enjoining the operation of a bus line through the village of Lewiston was granted by Mr. Justice Taylor (ex parte), and was subsequently modified by him, so as to restrict the operations of the defendant to the dock of the Canadian Steamship Company, but to permit the bus line to run straight through the village on its route, terminating at Youngstown. The order to show cause why the injunction should not be continued pendente lite was argued before Mr. Justice Laing, and resulted in a continuance of the modified temporary injunction until final judgment in this action.

It was conceded by counsel on the argument that the complaint correctly alleges all of the essential facts relevant to the situation, and to constitute a cause of action based on the failure of the defendant to apply for and obtain a certificate of convenience and necessity from the Public Service Commission, but it is contended that no legal

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

(178 N.Y.S.) requirement exists for such a certificate obtained by the defendant. For the purposes of the argument, the following facts stand admitted :

(1) That plaintiff is a common carrier operating 7 miles of double track railroad by electric motor power, extending from the city of Niagara Falls into the village of Lewiston.

(2) That plaintiff has obtained the consent of the authorities for such operation, as required by law.

(3) That plaintiff operates under a lease an electric railroad extending from within the village of Lewiston to and through the village of Youngstown, and terminating at Ft. Niagara.

(4) That the defendant operates a bus line, the route of which is for the most part parallel with plaintiff's railroad and its leased lines.

(5) That defendant is a common carrier and competes with the plaintiff in the carriage of passengers between said points.

(6) That defendant on the 6th of June, 1918, applied for and obtained from the Public Service Commission, Second District, a certificate of public convenience and necessity as to a portion of his route from 125 Main street, Niagara Falls, to the northerly boundary line of said city, and has since operated thereunder.

(7) That the board of trustees of the village of Lewiston, in June, 1919, adopted a resolution providing that the provisions of section 26 of the Transportation Corporations Law (Consol. Laws, c. 63), as amended by chapter 1307 of the Laws of 1919 (effective May 3, 1919), should thereafter apply to such village.

(8) That thereafter defendant petitioned the local authorities of said village for their consent to the operation of his bus line, and on July 24, 1919, said consent was granted upon terms, requirements, and conditions therein set forth, and over a route specifically described.

(9) That defendant has failed and neglected to apply for or obtain a certificate of public convenience and necessity for the operation of said bus line over said route.

(10) That such bus line operations result in damage and injury to the plaintiff, for which the plaintiff has no adequate remedy at law.

[1] Section 25 of the Transportation Corporations Law reads as follows: "Any person

who
owns or operates a

bus line

or route or vehicles described in the next succeeding section of this act wholly or partly upon and along any street

in any city shall be deemed to be included within the meaning of the term 'common carrier as used in the Public Service Commissions Law, and shall be required to obtain a certificate of convenience and necessity for the operation of the route or vehicles proposed to be operated.

It will be at once noted that section 25 clearly and unequivocally defines as common carriers within the terms of the Public Service Commissions Law (Consol. Laws, c. 48), and requires a certificate of public convenience and necessity for the operation of such bus route or vehicles, described in section 26, as are operated "wholly or partly upon and along any street

in any city." The defendant is such a person as section 25 describes, for he operates a part of his route along the streets of the city of Niagara Falls. The operation of a route partly in a city constitutes him a common carrier, and since the amendment of 1919, requires that he obtain a certificate "for the operation of the route or vehicles proposed to be operated.”

Section 24 of the Transportation Corporations Law was added to article 4 of said law by chapter 219 of the Laws of 1909, and it provided that any person owning or operating a stage route in a city of 1,000,000 inhabitants should be deemed a “common carrier," as the term is used in the Public Service Commissions Law. Section 25 was added by chapter 495 of the Laws of 1913, and its provisions completely answer the suggestion of defendant's learned counsel that the amendment of May 3, 1919, contained any joker clause, and it seems to me conclusive evidence of the legislative contention to require motor bus lines operating in villages or towns to obtain the certificate of public convenience and necessity of the Public Service Commission.

The enactment of 1913 was entitled “Additional Persons and Corporations Subject to the Public Service Commissions Law," and included therein those operating along highways known as a state route, and those constructed wholly and partly at the expense of the state, and along highways in any part of a city having a population of 750,000 or under; also that, where such a route had been constructed partly at the expense of a railroad, the Public Service Commission might require the applicant for its certificate to contribute a sum equal to five per cent. of the sum paid by the railroad or street railway corporation for construction, as a condition for further operating such a bus line.

The section was again amended by chapter 667 of the Laws of 1915 to its present form, and made to provide that any person operating a state route in any city should be deemed a common carrier within the meaning of the term as used in the Public Service Commissions Law, and shall be required to obtain the certificate of the commission. With that amendment of 1915, section 26, entitled “Consent Required," was added to article 4, and has continued in that form until May 3, 1919, when its provisions applicable only to a city were extended by chapter 307 to include towns and villages which might adopt resolutions providing that the provisions of the section should apply thereto; and the significant fact is to be noted that in the amendment of 1919 the words “shall be operated wholly or partly upon or along any street or highway in such town or village, nor receive a certificate of public convenience and necessity,” are exactly identical with the words in the first amendment of section 28, applying to cities, and the procedure for obtaining authority to operate therein.

The effect of the amendment of 1919 was to restore, to a considerable extent, the jurisdiction of the Public Service Commission granted in the provisions of section 25 as it was enacted in 1913, of which the commission had been deprived by chapter 667 of the Laws of 1915, As the section read prior to 1915, the certificate of the commission was necessary for bus lines operated over state routes or state highways outside of the city, and the legislative intent to return this jurisdiction is evident upon a reading of the 1919 amendment.

The amendment of 1915 had subjected the suburban railways of the

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