do as they choose with the corporate concerns and assets, provided the interests of creditors are not affected, because they are the complete owners of the corporation, cannot be invoked here. The fact that the plaintiff was able to control for voting purposes the eight minority stockholders, who were not parties to the agreement, if proved, would not make them parties or establish their consent to the agreement. They might vote in electing directors as the plaintiff requested without affecting their rights as stockholders. They could thereafter insist that the directors so chosen should assume and perform the duties and responsibilities which the law imposes.

The truck owned by Brunner was a onehorse truck and was going north in Water street. At the same time a two-horse truck owned by the defendants E. J. Johnston & Co. was also going north in Water street. When about 175 feet south of Wall Street the drivers of the two trucks began to race. The defendants' two-horse truck was on the right or east side of the street near the curb, while the one-horse truck was to the left near the middle of the street. The trucks were going, as one of the witnesses said, at about the same rate of speed as an ambulance or fire engine "responding to an emergency call." Water street near Wall street is about 20 feet wide between curb lines and is a busy

The judgment should be affirmed, with street. An ordinance of the city at the time costs.

HISCOCK, C. J., and CUDDEBACK, CARDOZO, POUND, CRANE, and ANDREWS, JJ., concur.

Judgment affirmed.

(223 N. Y. 284)

DE CARVALHO et al. v. BRUNNER et al. (Court of Appeals of New York. April 23, 1918.)

1. MUNICIPAL CORPORATIONS 706(6) HIGHWAY ACCIDENT-JOINT TORT-FEASORS -QUESTION FOR JURY.

In an action for the death of a person struck by one of two racing trucks, each owned by a defendant, whether the fast driving of defendants' servants was of such character as to endanger the safety of foot passengers in the street, and whether it was an act done in concert, held for the jury under the evidence. 2. MUNICIPAL CORPORATIONS 705 (12) HIGHWAY ACCIDENT-JOINT TORT-FEASORS -RACING TRUCKS.

If defendants' servants in concert raced their trucks in the street, driving so fast as to endanger the safety of foot passengers, both defendants were liable for the death of a pedestrian struck by one of the trucks.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Anna Vairoli de Carvalho and others, executors, etc., against Oscar C. Brunner and Johnston & Co. From a judgment of the Appellate Division (171 App. Div. 938, 156 N. Y. Supp. 1119), reversing a judgment of the Trial Term for plaintiffs and against defendant Johnston & Co., and dismissing the complaint as to such defendants, plaintiffs appeal. Reversed, and new trial granted.

Wayne M. Musgrave, of New York City, for appellants. Lyman A. Spalding, of New York City, for respondents.

CUDDEBACK, J. The plaintiffs in this action seek to recover damages for the death of Luiz da Cunha Carvalho who was struck and killed by a truck owned by the defendant Brunner. The accident happened at about noon April 25, 1911, on Water street near the corner of Wall street in the city of New York.

in force prescribed that no person in charge of any vehicle on a city street shall drive at a greater speed than is reasonable, having regard to the traffic and use of the highways or so as to endanger the life or limb of any person. As they proceeded, the one-horse truck gained on the two-horse truck and passed over in front of it at Wall street and then went north near the easterly curb. The twohorse truck drew off to the left and passednorth near the middle of the street. At that time the hubs of the trucks were about a foot apart. When they were about 15 feet north of Wall street the one-horse truck struck the plaintiffs' testator, who was crossing the street, and killed him.

At the Trial Term a verdict of $10,000 was rendered against all the defendants. The defendants Johnston & Co. appealed to the Appellate Division, but the defendant Brunner did not appeal. The Appellate Division reversed the judgment and dismissed the complaint as against the defendants Johnston & Co. The appeal here is by the plaintiffs from so much of the judgment as was reversed at the Appellate Division. The Appellate Division said that there was no evidence to show that the truck owned by Johnston & Co. in any way contributed to the

accident.

In Cooley on Torts (volume 1 [3d Ed.] p. 249) the author, speaking of the liability of joint wrongdoers, said:

"Where two or more are unlawfully or negligently racing horses on a street and one injures a traveler, they are jointly and severally liable."

[1, 2] It was for the jury to say, from all the circumstances in the case, whether the fast driving of the defendants' servants was of such character as to endanger the safety of foot passengers in the street, and whether it was an act done in concert, and if the jury found in the affirmative it was authorized to hold all the defendants liable. Hanrahan v. Cochran, 12 App. Div. 91, 42 N. Y. Supp. 1031; Burnham v. Butler, 31 N. Y. 480; Vosburgh v. Moak, 1 Cush. (Mass.) 453, 48 Am. Dec. 613. In that view of the case there certainly was some evidence to sustain

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

the judgment of the Trial Term, and the, at the time when his crime was committed, and complaint should not have been dismissed.

I recommend that the judgment appealed from be reversed, and a new trial granted, with costs to abide the event.

HISCOCK, C. J., and CHASE, COLLIN, HOGAN, and CRANE, JJ., concur. McLAUGHLIN, J., not sitting.

Judgment reversed, etc.

(223 N. Y. 307)

PEOPLE ex rel. CERZOSIE v. WARDEN OF
NEW YORK COUNTY PENITENTIARY.
(Court of Appeals of New York.
23, 1918.)

CONSTITUTIONAL LAW

April

203-Ex POST FACTO LAW-PAROLE COMMISSION ACT. The Parole Commission Act (Laws 1915, c. 579) enacted May 10, 1915, providing for the application of a system of indeterminate sentences and parole for persons convicted of certain offenses, that in any city of the first class where there was a department of correction having certain jurisdiction there should be power to create a parole commission, and that after the creation of such commission any person convicted of any offense punishable by imprisonment in certain penal institutions should be subject to imprisonment under the act, which should take effect immediately, was not ex post facto as to one convicted January 18, 1916, of a crime committed November 25, 1915, though the parole commission created in the city to administer the provisions of the act was not appointed until December 17, 1915, since the statute was in force when the crime was committed and relator was forewarned of the punishment.

Appeal from Supreme Court, Appellate Division, First Department.

Habeas corpus by the People of the State of New York, on the relation of Joseph Cerzosie, against the Warden of the New York County Penitentiary. From an order of the First Appellate Division (167 N. Y. Supp. 1121), modifying an order of the Special Term, sustaining the writ and remanding relator for resentence by directing his discharge, the people appeal. Orders reversed, writ dismissed, and relator remanded to custody.

Edward Swann, Dist. Atty., of New York City (Robert S. Johnstone, of New York City, of counsel), for appellant. Franklin Grier, of New York City, for respondent.

HISCOCK, C. J. The relator was convicted in the Court of General Sessions of the county of New York of the crime of assault. He was sentenced to an indeterminate term of imprisonment under the provisions of chapter 579 of the Laws of 1915 commonly known as the Parole Commission Act. He claims without dispute by the people that the sentence imposed upon him was more burdensome than could have been imposed except for the provisions of said act, and he then insists that such act had not taken effect

that therefore he could not be punished under it. This claim that the law was ex post facto as to him was the sole ground specified in his petition as a basis for the writ which was issued and the only one which has been considered in the courts below or in the arguments before us. We shall therefore confine our consideration wholly to the complaint thus specified.

In this consideration, the chronology of certain events is necessarily important. The statute was passed and became a law May 10, 1915. Relator's crime was committed November 25, 1915. The parole commission created in the city of New York under said act for the purpose of administering and carrying out its provisions in said city was appointed December 17, 1915. The relator was convicted, and this step is regarded as of importance under the terms of the act, January 18, 1916. With these dates before us we shall consider the provisions of the statute for the purpose of determining whether the same was so in effect at the time relator's crime was committed as to be a constitutional authority for the sentence which was imposed upon him.

The act was entitled one "extending and developing the reformatory and correctional functions of workhouses, penitentiaries, and reformatories under the jurisdiction of departments of correction in cities of the first class, providing for the sentence, commitment, parole, conditional discharge, and reapprehension of persons committed to such institutions and for the establishment of a parole

commission in such cities." Summarized in what we think will be a fair manner for the purposes of this proceeding, it in substance provided for the application of a system of indeterminate sentences and parole for persons convicted of certain offenses; that in any city of the first class where there was a department of correction having certain jurisdiction there should be the power in the manner specified to create "a parole commission to be constituted and appointed and to possess the powers and be subject to the duties" in said act specified; that "after the creation of a parole commission in any of the said cities

any person convicted of any offense punishable by imprisonment" in certain penal institutions should be subject to imprisonment under and in accordance with the terms of said act; that said act should "take effect immediately."

The argument of the relator, of course, is based upon the theory that said act did not take effect in any given city until the parole commission therein provided for had been appointed, and that inasmuch as this did not occur in New York City until after the commission of his crime his punishment was not and could not be administered in accordance with the terms of the act. We disagree with

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

this fundamental and essential proposition in his argument. We think that in its larger and, for the purposes of this proceeding, controlling features, the statute took effect and went into operation on the date when it was passed. By its terms it explicitly stated this to be the fact, and we regard this explicit statement as supported by the general provisions and scope of the statute. Its title indicated that it was of general scope, and that it was adopted for the purpose of permitting certain present modifications in the administration of penal laws which were deemed to be beneficial and in the interests of real reform. Having prescribed various changes which might be made in methods of punishment, it provided that any city of a certain description might at once take steps for the appointment of a parole commission to carry out the provisions of the statute. Under these conditions we think that the law took effect at once as therein stated, and that this result was not affected or impaired because in some particular city there might be delay or even failure to effect the appointment of a commission through and by which the provisions of the statute might be administered and carried into operation.

We do not find in the case of People ex rel. Unger v. Kennedy, 207 N. Y. 533, 101 N. E. 442, Ann. Cas. 1914C, 616, anything which seems to us to sustain the view which nas been taken by the courts below. In that case we were considering a much-bungled piece of legislation, and were trying simply to determine whether the Legislature had attempted to delegate to the voters the right to decide whether the statute should ever become a law or the question whether a completed and fully enacted piece of legislation should become operative in a certain territory. We recognized that there might be cases where it would be difficult to determine which question had been submitted, but that beyond doubt the questions were entirely different. One might be submitted to the voters and the other one not. the question which we are considering in this case, it was in effect provided in the act itin the future and that on a negative decision self that it should not become operative until by the voters it should not become operative even at such future time. While, as we have pointed out, the present statute did not beadministrative body was appointed to give fundamental provisions took effect at once, effect to its operations, the statute in its and it gave notice to this relator before his crime was committed that if and when a com

So far as concerns

come operative in a certain sense until an

in a certain manner which was different than that which prevailed before the statute was adopted.

For these reasons we think that the orders appealed from should be reversed, the writ dismissed, and the relator remanded to custody.

In our opinion the statute in a real, as well as in a technical and legal sense, was in force at the time when the relator committed his crime and forewarned him of the punish-mission was appointed he would be punished ment which he might expect. As has been pointed out, it outlined a system of punishment such as has been inflicted upon him, and it provided that in case he should be convicted after a commission had been appointed for administering the provisions of said statute he should be punished in accordance with its terms. Thereby it was indicated, and he was fully warned before he committed his crime, that in the city of New York there might at any time be adopted an altered form of punishment which would be applied to him if he was convicted after its adoption. Thus he was not subjected to a new and altered form of punishment formulated after his crime was committed. He was, so far as we can see, subjected to none of the penalties or injustice arising from an ex post facto law.

CHASE, COLLIN, CUDDEBACK, CARDOZO, POUND, and ANDREWS, JJ., concur. Orders reversed, etc.

(223 N. Y. 347) CENTRAL TRUST CO. OF NEW YORK v. PITTSBURGH, S. & N. R. CO. et al. (Court of Appeals of New York. May 7, 1918.) 1. RECEIVERS 117 POWER OF COURT MAINTENANCE OF PROPERTY. When all the property of a railroad corpoof a court of general jurisdiction and in the ration is temporarily in the immediate control possession of a receiver, and money is necessary to reasonably maintain the property, the court may authorize the receiver to borrow the money and issue certificates of indebtedness.

2. RECEIVERS 128 - RECEIVER'S CERTIFICATES-LIEN.

It is suggested that too much emphasis should not be given to the word "convicted" in the provision that any person convicted after the appointment of a commission should be punished in accordance with the terms of the statute. We do not agree with this view. In the first place the language of the statute seems to be perfectly specific in its application to convictions occurring after such appointment. In the second place this was, within the limits which we have discussed, the important step which gave opportunity for application of the provisions of the stat- The power of the court to authorize a receiver to borrow money for necessary mainte

ute.

If it is necessary to enable a receiver of a and it appears of sufficient importance to the railroad to borrow money for its maintenance, public and persons interested, the receiver's certificates may be made a lien prior to all other liens.

LOANS

3. RECEIVERS 120 RAILROADS -PRIORITIES-POWER OF COURT-NOTICE.

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

nance of a railroad, and to make it a prior lien, exists without consent of or notice to persons interested, though such authority is sub

ject to review.

4. RECEIVERS 71-POWERS-PROPERTY.

The possession of a receiver of a railroad is the possession of the court, and it is not circumscribed by the priority in interest of the mortgage, judgment, or claim of the person upon whose motion he was appointed, and his power and authority is based upon equitable principles defined and directed by its orders. 5. RECEIVERS

TIES.

Alton B. Parker, of New York City, for appellant. Arthur H. Van Brunt, of New York City, for respondent Central Trust Co. of New York. Wells V. Moot, of Buffalo, for respondent Pacific Improvement Co.

CHASE, J. The value of railroad property depends to a very large extent upon the business done by the railroad corporation. The business done by the corporation, and 121-CERTIFICATES-PRIORI- the net financial result of such business, depend in turn to a very large extent upon the condition of the roadbed and the rolling stock, and upon the available facilities for handling satisfactorily and economically passenger and freight transportation.

Although a receiver in petitioning for authority to issue certificates for necessary maintenance omitted to mention a mortgage or make the holder a party, such fact would not prevent the court from later making renewals of such certificates a lien prior to such mortgage, at which time the petition named such mortgage, and the holder appeared at the hearing. 6. RECEIVERS 128-CERTIFICATES-PRIORI

TIES.

Where necessary and advisable, the court could make certificates of a receiver of a railroad, necessarily issued for the maintenance of the road, a lien prior to a mortgage which had become merged in a judgment of foreclosure and sale.

7. RECEIVERS 121 HEARINGS NOTICE -SUFFICIENCY.

A mortgagee of a railroad, who had actual notice of a petition of a receiver to issue certificates, and who was represented by counsel at the hearing, was as much bound by an order making such certificates a prior lien as though a formal party with formal notice.

[1] When all the property of a railroad corporation is temporarily in the immediate control of a court of general jurisdiction and in the possession of a receiver, and it appears necessary to expend a sum of money not then available to reasonably maintain the property in its integrity as a railroad, the court may not only authorize the receiver to borrow the money for such expenditure, but may exercise the power which it possesses in equity over the property so within its control and make the certificates of indebtedness therefor a lien thereon.

[2] If it is necessary to enable the receiver so to borrow the money, and it appears to be of sufficient importance to the public and

Appeal from Supreme Court, Appellate Di- the persons directly interested in the propvision, Fourth Department.

Action by the Central Trust Company of New York against the Pittsburgh, Shawmut & Northern Railroad Company, Shawmut Mining Company, Kersey Mining Company, and Hamilton Trust Company, to foreclose a mortgage; Frank Sullivan Smith being appointed receiver of the property covered. The Central Trust Company of New York, as trustee of the mortgage of the Central New York & Western Railroad Company, and the Pacific Improvement Company appeared specially. From an order of the Appellate Division (179 App. Div. 607, 168 N. Y. Supp. 702), reversing an order authorizing the issue of receiver's certificates, the receiver appeals. Order reversed.

See, also, 220 N. Y. 690, 116 N. E. 1040; 119 N. E. 570; 167 N. Y. Supp. 1092; 168 N. Y. Supp. 1104.

erty, such receiver's certificates may be made a lien prior to all other liens on the property of the corporation. Justice Blatchford in Union Trust Co. v. Illinois Midland Ry. Co., 117 U. S. 434, 6 Sup. Ct. 809, 29 L. Ed. 963, has stated in a few words the power of the court and the necessity at times of exercising that power, as follows:

"Property subject to liens and claims and debts, of various characters and ranks, which equity for administration, and conversion into is brought within the cognizance of a court of money, and distribution, is a trust fund. It is to be preserved for those entitled to it. This must be done by the hands of the court, through officers. The character of the property gives character to the particular species of preservation which it requires. Unimproved land may lie idle, with only payment of taxes. Improved property should be rented. Movable property that is not perishable may be locked up and kept; but if perishable, it must be sold, by way of preservation. A railroad, and its appurtenances, is a peculiar species of property. Not only will its structures deteriorate and decay and perish if not cared for and kept up, but its business and good will will pass away if it is not run and kept in good order. Moreover, a railroad is a matter of public concern. The franchises and rights of the corporation which constructed it were given not merely for private gain to the corporators, but to furnish a public highway; and all persons who deal with the corporation as creditors or holders of its obligations must necessarily be held to do so in the view that, if it falls into insolvency, and its affairs come into a court of equity for adFurther facts, so far as material, are stat-chises and property, by a sale, into other hands, justment, involving the transfer of its franed in the opinion. to have the purposes of its creation still carried

The Appellate Division granted leave to appeal to this court, and certified that in its opinion a question of law is involved which ought to be reviewed by the Court of Appeals. The question is as follows:

"Had the Special Term power to determine the question of the priority of the receiver's certificates upon the motion and the papers before it as against the first mortgage bondholders, or their trustee named in the first mortgage?"

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This court in Knickerbocker Trust Co. V. Oneonta, C. & R. S. R. Co., 201 N. Y. 379, 384, 94 N. E. 871, 872, referring to the two cases from which we have quoted, say: "The power to issue receiver's certificates paramount to the liens of strangers to the suit is of a strictly limited nature, and the theory on which the existence of power at all is based is clearly stated in two decisions of the United States Supreme Court." Vilas v. Page, 106 N. Y. 439. 13 N. E. 743: Raht v. Attrill, 106 N. Y. 423, 436, 13 N. E. 282, 60 Am. Rep. 456; Miltenberger v. Logansport Railway Co., 106 U. S. 286, 1 Sup. Ct. 140, 27 L. Ed. 117; Amer-burgh, Shawmut & Northern Railroad Comican Brake Shoe & Foundry Co. v. Pere Marquette Railway Co., 205 Fed. 14, 123 C. C. A. 322: Central Trust Co. v. M. & N. G. R. Co., 75 Fed. 209, 21 C. C. A. 307; Central Trust Co. v. Tappan, 6 N. Y. Supp. 918.1