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Supreme Court, May, 1899.

now be maintained against a person in the character of executor de son tort. Hopper v. Hopper, 125 N. Y. 400, was an action. brought here against an ancillary executor, and is not in conflict with the views above expressed. In fact, it was said in that case, “that a foreign executor cannot sue or be sued in this state upon a contract of his testator, since the right or liability is purely representative and exists only by force of the official character, and so cannot pass beyond the jurisdiction which gave it." Demurrer must be sustained, with costs.

Demurrer sustained, with costs.

CALVIN S. RUSSELL et al., Plaintiffs, v. THE NEW YORK PRODUCE EXCHANGE et al., Defendants.

(Supreme Court, New York Special Term, May, 1899.)

Action to restrain an exchange from excluding outsiders from doing business on the floor.

A dispute having arisen between members of New York Produce Exchange and merchants for whom they had acted at said exchange as brokers, the matter was arbitrated by a committee of the exchange but the merchants would not accept the decision and defended an action brought by the brokers for the award made. At the instance of the brokers the exchange subsequently duly prohibited all the members from doing business on the floor for the merchants and the latter thereupon brought an action to enjoin the exchange from excluding them in this manner.

Held, that as the action of the exchange appeared to be regular and as the merchants were not members thereof they had no status to regulate its manner of conducting business.

That the question whether the decision of the exchange committee could be supported on its merits was not at issue and should be decided in the action to recover the award.

ACTION for an injunction. The facts are set forth in the opinion.

Thomas Carmody, for plaintiffs.

Abel E. Blackmar, for defendants.

Supreme Court, May, 1899.

[Vol. 27.

GILDERSLEEVE, J. The defendants Hadley and Toomey were copartners and members of the New York Produce Exchange. The plaintiffs were copartners in business, but were not members of the Produce Exchange, nor was either of them a member of said exchange. The plaintiffs, however, had been dealing on the said exchange through said firm of Hadley & Toomey, as their brokers. Prior to November 15, 1898, the plaintiffs and said firm of brokers had a dispute as to the account between them. In order to settle this dispute, the plaintiffs and said firm of brokers agreed to submit the matter in controversy to the arbitration committee of the New York Produce Exchange. There does not appear to have been any compulsion exercised upon the plaintiffs to induce them to so submit the matter to arbitration, or to agree upon said committee as the arbiter; and it must be held that they voluntarily chose, or consented to, this method of settling the dispute in question. The said arbitration committee decided in favor of the brokers. The plaintiffs, however, complained that the award was irregular and unjust, and refused to abide by it; whereupon the said brokers brought an action in this court for judgment on said award, which action is still pending. On or about January 11, 1898, the said firm of brokers filed a complaint with the said exchange, in compliance with the by-laws of said exchange; and proceedings were had, under and in pursuance of the said by-laws, which resulted in the passage by the board of managers of the said exchange of a resolution declaring the plaintiffs guilty of the charges brought against them by the said brokers, and prohibiting the plaintiffs from representation on the floor of the exchange, and prohibiting all members of the exchange from representing or doing business for the plaintiffs on the exchange, after the posting of notice of such prohibition on the bulletin of the exchange. A copy of said resolution was duly posted on the bulletin board upon the floor of the exchange from about April 7, 1898, to about July 23, 1898, when it was removed by reason of an ex parte temporary injunction. The plaintiffs brought this action for an injunction, restraining the Produce Exchange from posting this resolution, and from prohibiting the members of the exchange from representing plaintiffs on the exchange, and acting for them on the floor of said exchange. It is the claim of the plaintiffs that this action of the board of managers was unfair and irregular. The board, however, appear to have acted in accordance with the by-laws of the exchange. Whether they ar

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Supreme Court, May, 1899.

rived at a just conclusion with regard to the merits of the dispute between the plaintiffs and the said firm of brokers, or not, is a question that is not in issue here. That matter will be decided when the action, now pending in this court, upon the said award, is tried. The action of the board, and the proceedings leading up to the final resolutions here complained of, appear to have been regular, so far as the relations between the members of the exchange are concerned. No complaint appears to have been made by any member of the exchange, and if the plaintiffs, who are not members of the exchange, object to the by-laws of the said exchange, I know of no remedy by which they can make their objections effective. It is for the members to complain, if, indeed, any cause of complaint exists, but not for an outsider. There is no illegal restraint of trade in the matter. The board of managers do not, and cannot, prevent the members, if so disposed, from dealing with the plaintiffs outside of the Produce Exchange. They merely exclude the plaintiffs from any dealings on the floor of their exchange. The by-laws, in virtue of which the board so acted, are, in effect, a mere contract of agreement between the members of the exchange. As the plaintiffs were not members of the exchange, they had no right to have their business transacted there without the consent of the Produce Exchange; and, consequently, they have suffered no illegal injury by the act of the exchange in question. It is true the by-laws permitted the members to do business for outsiders on the floor of the exchange, if they so saw fit to do; and if the action of the board of managers has taken away that permission with respect to the plaintiffs, it is for the members to complain, not for an outsider, who never had any rights in the matter. If there is any restraint of trade, it is the trade of the members of the exchange which is so restrained. The plaintiffs cannot be said to be suffering great and irreparable injury, calling for injunctive relief, for the reason that none of their legal rights are being infringed. If there is any illegal restraint of trade, the members of the exchange can disregard the action of the board of managers; and if the exchange attempts to punish them, the courts will protect them. That is a question for the members of the exchange, not for the plaintiffs. There is no evidence produced in this action to warrant the court in assuming that the business of the Produce Exchange is so affected by a public use, that it is subject to regulation at the suit of an outsider. If such be the case, the evidence to establish the fact has not been

Supreme Court, May, 1899.

[Vol. 27.

produced here. The cause of action seems to be without merit, and the complaint must be dismissed with costs. Let the defendants' attorney prepare a decision and judgment, and give two days' notice of settlement.

Complaint dismissed, with costs.

THE PEOPLE ex rel. JOHN S. SUTPHEN, Relator, v. THOMAS L FEITNER et al., as Commissioners of Taxes, etc., Respondents.

(Supreme Court, New York Special Term, May, 1899.)

Greater New York charter, Laws of 1897, chap. 378, §§ 898, 906, 98 Review of assessment for overvaluation and for inequality Proof of overvaluation When further testimony will not be taken Proof of inequality.

Where a review by certiorari is sought, under the Greater New York charter (Laws of 1897, chap. 378, § 906), of an assessment of real property on the ground of overvaluation, the taxpayer must show that the valuation exceeded the market value, and where he presents no evidence on this point and rests his contention upon his own opinion and upon the fact that in former years his assessments were much lower, there is no ground for interference by the court with the decision of the tax commissioners. Section 898 of said charter does not make it the duty of the city tax commissioners, upon the presentation to them of the petition of one aggrieved by an assessment, to cause testimony to be taken with respect to the complaint and the burden is upon the taxpayer to take the initiative. The court has power, upon certiorari, to direct evidence to be taken with regard to the complaint but whether this shall be done rests in sound discretion.

Testimony will not be ordered taken where the necessity for supplementary proofs arises from the inexcusable failure of the taxpayer properly to submit his case to the tax commissioners in the first instance. Under section 908 of said charter an assessment is now reviewable for inequality, but a taxpayer cannot obtain the advantage of this provision unless his petition specifically states "the instances in which such inequality exists and the extent thereof ".

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Supreme Court, May, 1899.

CERTIORARI to review an assessment for purposes of taxation upon certain real property owned by the relator, in the city of New York.

The material facts are stated in the opinion.

C. J. G. Hall (Uriah W. Tompkins, of counsel), for relator.

John Whalen, corporation counsel (James M. Ward, of counsel), for respondents.

BEEKMAN, J. The relator has sued out this writ in order to obtain a correction of the assessment of certain real property owned by him which has been made by the respondents for the purposes of taxation for the year 1898. The property so affected consists of vacant lots, fronting on the Riverside Drive, on Seventy-second street and on Seventy-third street, so far contiguous that but for the intervention of a single lot, about midway between the said streets, they would together embrace the entire frontage of the block on Riverside Drive. It has been assessed at an aggregate sum of $145,000.

On the 28th day of April, 1898, the relator made an application to the respondents, using a printed form which they furnished him for the purpose, for the correction of the assessment, in which, after referring to the lots by their appropriate numbers on the tax map, he stated as follows: "He finds that the same has been assessed on the assessment-roll of 1898 at a valuation of $145,000, whereas the same should not have been, in his judgment, valued at more than $69,000, to be in proportion to the assessed value of adjacent property, and in accordance with the marketable value thereof."

Immediately following this is a printed direction requiring the applicant to "state in detail the special facts upon which this application is based." In obvious compliance with this request the relator stated that "the market value of the property has not increased since 1895, and the ability to sell the property has, in fact, decreased. The property was assessed for the year 1895, at $57,000, being increased to $69,000, for the year 1896. It is vacant property, irregular in shape, and produces no income. Is rock at the curb-line covering all."

Resting upon this statement, the relator then asked that his assessment might be reduced to the amount stated, namely, $69,000.

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