Hyperlawhypertext legal database Jennie Clarkson Home for Children v. Union Pacific Railroad 87 N.Y.S. 1137

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Jennie Clarkson Home for Children v. Union Pacific Railroad

87 N.Y.S. 1137 Court N.Y. App. Div. Decision date 1904-03-25 English

Decision Majority — INGRAHAM, J. · Concurring — HATCH, J.

Contents

Majority

p. 1137
JENNIE CLARKSON HOME FOR CHILDREN, Respondent, v. UNION PACIFIC R. CO. et al., Appellants.
(Supreme Court, Appellate Division, First Department.
March 25, 1904.)

Headnote

Action by the Jennie Clarkson Home for Children against the Union Pacific Railroad Company and another. From a judgment for plaintiff (S3 N. Y. Supp. 913), defendants appeal. Affirmed. Austen O. Fox, for appellant Gibson. Pierce & Greer, for appellant Union Paci Ry. Co. Henry W. Saekett, for respondent.

The questions presented in this case are the same as those determined in the case of Jennie Clarkson Home for Children v. Chesapeake & Ohio Railway Company (decided herewith) 87 N. Y. Supp. 348 . The judgment in this case, however, gave to the plaintiff a judgment against the defendant Union Pacific Railroad Company and Robert Gibson, as general partner of the limited partnership of H. Knickerbocker & Co. For the reasons stated in the case of Jennie Clarkson Home for Children v. Chesapeake & Ohio Railway Company, we have reached the conclusion

Concurrence

p. 1138
that the plaintiff is not entitled to judgment against the defendant Gibson,' and the judgment must therefore be reversed as to Gibson, and the complaint dismissed, with costs to Gibson against the plaintiff. The judgment against the Union Pacific Railroad Company is affirmed, with costs to the plaintiff against the Union Pacific Railroad Company.

VAN BRUNT, P. J., concurs in result.

1 concur in the opinion of Mr. Justice INGRAHAM, so far as it disposes of the question arising between the railroad company and the plaintiff. I also think that the plaintiff.is entitled to the judgment which it has obtained against Gibson. The form which the trial of the action assumed conferred authority upon the court to award any relief which the facts warranted; and, as it appeared that the defendant Gibson could be made liable for a conversion of the proceeds of the bonds, it was proper for the court to award the judgment against him which it did. I am, therefore, for the affirmance of the judgment in its entirety. The judgment should be affirmed, with costs.

PATTERSON and LAUGHLIN, JJ. We concur in the opinion of Mr. Justice INGRAHAM, except so far as the liability of the defendant Gibson to the plaintiff is concerned, and with respect to that we concur in the opinion of Mr. Justice HATuH.