author: Wright, J. Allen, J.

text:
    Austin v. The Hudson River Railroad Company.
    A tenant for years erected buildings: the acjjoining owner, by the negligent excavation of his own soil, caused the undermining of the building, which, while the work was in progress, had been sub-let, and the walls fell while in the occupation of the sub-tenant: Held, that the original lessee could maintain his action for the injury to the buildings.
    If entitled to remove the buildings- on the expiration of his term, there was a direct injury to the tenant’s property: if they became part of the freehold, his liability to the landlord for tortious waste entitles him to maintain an action against the wrongdoer.
    Besides, as tenant, he had an interest in'the use of the building; and landlord and tenant may each maintain an action for the injury to his particular estate.
    Appeal from the Supreme Court. Action against the defendant for injury done to the plaintiff’s building, standing on lot Ho. 95, on the Albany pier, through the alleged negligence of the defendant. On the trial, these facts appeared: The plaintiffs were the lessees^iqr the term of ten years, commencing on the 1st of April, 1848,\of lots Nos. 95 and 96, on the pier, and had erected thereon certain buildings, or warehouses, for the use of themselves, their dqstomers, and to rent to others. The defendant owned lots NosS$3 and 94, which last lot laid, north of, and adjoining, lot No. 95, and it ob tained the consent of the Pier Company to w-ijden the cut, by excavating and removing its own soil, in consideration of its making good all damages that might be occasioned by the excavation. The work was commenced in October or November, 1851, and although it might have been completed in two or three weeks, was not finished until about August, 1852. The excavation was carried within about four feet of the plaintiff's warehouse and the north line of lot No. 95, in the first place, but was entirely confined to the land owned by the defendant. After this excavation^, was done the work was suspended, from time to time, for considerable periods, leaving the plaintiff’s building exposed, without protection against the action of the water and ice. The attention of those engaged in the excavation was called to the fact that the water was washing away the earth at the north end of the plaintiff’s lot. Piles were driven by the defendant in the fall of 1851, after the excavation had been made, and the work was suspended until the spring of 1852. The piles were so driven as to crack the walls of the plaintiff’s building, which, together with the action of the water, in undermining the building, caused the walls of it to fall in May, 1852. With proper and sufficient dispatch, the work could have been done so as not to have injured the plaintiff’s building. No injury would probably have occurred if, instead of excavating from the cut towards the plaintiff’s building, a trench had been dug across the pier at the north end of such building, and the south end wall of the cut built before the excavation was begun. After the walls fell, Austin, the plaintiff, wrote to the president of the Company in relation to it, and received from the latter a reply stating that his letter had been received and handed to the chief engineer, who “ will examine your stores.” Afterwards, the chief engineer called at thg-bffice and told the plaintiff to put up the building as cheaply as he could, and the railroad company would pay for it. The plaintiff repaired the building at a cost of about $310. The injured building was untenantable for about half the season.
    At the time the building fell, it was occupied by the Syracuse and Oswego line, under a lease from the plaintiff. They hired it incite winter and went into possession in March, 1852. The plahrtiff allowed to them a deduction on their rent of $150. There was no proof as to the length of time they were to occupy the building, or the sum agreed upon for rent.
    Lots known as Nos. 95 and 96 belonged to the estate of Francis Bloodgood, and on the 1st of April, 1848, were let and rented to the Albany and Canal Line of tow boats, for the term of ten years, at the yearly rent of $500. The counsel for the defendant moved for a nonsuit, on the following grounds:
    1. That, upon the evidence given, the defendant cannot be made liable for the alleged injury.
    2. That if the defendant had anything to do with the excavation at all, it was all done upon its own premises, and it is not liable for consequential injuries to an adjoining lot or the erections upon it.
    3. That there is no proof to authorize a finding that the work on the defendant’s premises was done in a negligent or improper manner, in respect to which an adjoining owner has any right to complain.
    4. That the plaintiff, having full notice of the operation being carried on upon the premises of the defendant, was bound to protect his own premises from, the natural and necessary consequences which did and would result to the plaintiff’s building from the excavation and action of the water.
    5. That the plaintiff was guilty of negligence in not properly guarding his own premises after due notice; and as that has contributed to the injury, he cannot recover.
    6. That even if the defendant is liable- for the injury to the building, it being an injury to the inheritance, the owner of the reversion, only can maintain an action, and the plaintiff, being simply a tenant, has no right of action.
    7. That the building and premises injured being, at the time of the injury, in the actual occupation of a tenant under a sub-lease from the plaintiff, there is no right of action in the plaintiff.
    The court refused to nonsuit the plaintiff, and the defendant excepted.
    The court charged, among other things, that it was a question of fact for them to decide, on the evidence, whether the excavation had been done by the defendant or under its direc tions. That if the work of excavation was negligently conducted by the defendant, then the defendant was liable for the injury.
    That the action could be maintained by the plaintiff for the injury complained of, notwithstanding the building injured was at the time in the actual occupation of a tenant.
    That if the plaintiff was entitled to recover at all, he was entitled to recover the amount of damages he had actually sustained, including loss of rent from the Syracuse and Oswego Line. To each of which propositions the defendant’s counsel took a separate exception.
    The jury rendered a verdict for the plaintiff for $524.20.
    On appeal the judgment was affirmed at general term, and the defendant appealed to this court.
    .John H. Reynolds, for the appellant.

      John K. Porter, for the respondent.
   Wright, J.

The motion for a nonsuit on the plaintiff’s evidence, and the exceptions to the charge of the court, raise the questions: 1st. Were the defendants liable at all for the alleged injury? 2d. And if liable, can the plaintiff maintain the action ?

1st. The complaint alleges that the defendants, by their officers, agents and servants, undertook to enlarge and widen the cut in the Albany pier on the south side thereof, and so carelessly and negligently performed the work that, by and through such carelessness and negligence, the north wall of a building or warehouse of the plaintiff’s on such pier was thrown down, and the building greatly injured and damaged, and the plaintiffs deprived of the use, occupation and income thereof. The fact of the defendants proceeding to enlarge and widen the cut is not denied in the answer,'but they set up by way of avoidance that the work was not done under their immediate care, but by a contractor, under a special agreement that it should be done at a proper time and in a skillful manner; none of which facts were attempted to be proved on the trial. The proof showed that the work was done by the defendants’ engineers and employees, under- their direction, and not by á contractor under any special agreement.

The defendants hawing obtained the.consent of the pier company to widen the cutbv^cavatmg their own lots, might lawfully perform the work, and so long as the excavation did not extend beyond their own land, and was not negligently or unskillfully done, any injury to an adjacent proprietor would be damnum absque injuria. But if the work was negligently, unskillfully and improperly performed, and in consequence thereof the building of the plaintiffs was injured, they would be liable. (Dodd v. Holmes, 1 Adol. & Ellis, 473 ; Jones v. Bird, 5 Barn. & Ald., 837; Vaughan v. Mealon, 32 Eng. Com. Law, 613; Slingsly v. Barnard,, 1 Roll., 430; Bellows v. Sacket, 15 Barb., 96.) The judge charged the jury that if the work of excavation was negligently conducted by the defendants, then they were liable for the injury, thus carrying out the principle enunciated,'and which runs through the cases.

The question of negligence, or whether the excavation was made with ordinary care and skill, was submitted to the jury, the judge not being requested by the defendants to pass upon the question as matter of law from the evidence adduced by the plaintiff. It is true, that one of the grounds urged for nonsuiting the plaintiff was, that there was no proof to authorize a finding that the work on defendants’ premises was done in a negligent or improper manner in respect to which an adjoining owner had any right to complain. But this did not meet the precise question whether there had been a want of ordinary care in the manner of performing the work, whereby injury, had resulted to the owner of adjoining premises. But I think that the judge would have been justified in holding, as matter of law upon the evidence, that ordinary care was not. exercised, and because it was not, injury resulted to the plaintiff’s building; and if so, the defendants cannot complain that the question was given to the jury. .

It is a general principle that, if the plaintiff’s wrongful act y or negligence concurs with that of the defendant in producing \ "the injury, the law will not aid him in obtaining any redress. J The principle admits of exceptions and qualifications, which is unnecessary to state, as I do not think it reaches this cas&y ¡NjHtegligent conduct of the plaintiffs contributed to produce the injury. The aggressor, says the learned judge, in Bellows v. Sacket (15 Barb., 96,) can never say that it was the duty of the assailed to ward off the blow aimed at him. ' The plaintiffs were the lessees of the pier lot adjoining those excavated and removed by the defendants, and had erected a building thereon. Through the negligence and want of care of the defendants in excavating their lots and widening the cut, the walls of their building cracked and fell. The defendants, in the fall of 1851, excavated and removed the earth from both of these lots, .to within four feet of the north line of the plaintiff’s building, and drove piles in such a-way as to crack the walls. The work was then suspended" until the following '>> spring, during which suspension the water by its action was washing away the earth at the north end of the plaintiff’s lot, and gradually undermining such lot. The attention of those ) engaged in the excavation was called to the action of the water, but nothing was done. There was no duty resting on the plaintiffs to protect their building. But if there had been, nothing could have been done short of- erecting the end wall on the south side of the cut. The building could not have been propped up and saved from falling, when the fall was the result of its being partially undermined. It was not the case of a party who, having a duty to perform, neglects it, and lies in wait ” for damages.

I am clearly of the opinion that the defendants were liable tor the injury. They undertook to excavate and remove their lots on the pier with the view of widening the cut on the south side. Whilst they kept upon their own premises, they were bound to ordinary care and skill in doing the work. If they negligently and improperly prosecuted and performed the work, and through such negligence and want of caution the plaintiff’s building was injured, they are liable to make compensation. The evidence tended strongly to show, and the jury have found on the question of negligence against the' defendants.

2. Are the plaintiffs entitled to maintain the action? It was alleged in the complaint, and admitted by the answer, that the plaintiffs were the lessees of the pier lots, and had erected thereon buildings or warehouses for their own use, and to rent to others. They had, therefore, erected and owned the building injured. They were, by the negligence of the defendants, deprived of its use, and subjected to the expense of rebuilding, .to make their enjoyment of the premises as valuable as before. The loss caused by the act of the defendants was suffered by the plaintiffs; and, it being the loss of the latter, I cannot -well see why the defendants are not liable to them. But, if it were necessary to enable the plaintiffs to maintain the action, that they should have held an interest in the premises at the time of the injury, such interest appeared. They were lessees of the land on which the warehouse was erected for an unexpired term of years. The injury occurred in 1852; and their lease did not expire until 1858. The destruction of the warehouse, by tortious negligence, was waste, for which the plaintiffs, being tenants for a term of years, were answerable to the reversioner, wholly irrespective of any express agreement to repair or rebuild. Being bound to answer to the heirs of Bloodgood for the injury to the building, they were entitled to a corresponding redress from the defendants. “It is common learning,” said Heath, J., in Attersol v. Ste vens (1 Taunt., 198), “ that every lessee of land, whether for life or years, is liable, in an action of waste, to his lessor, for all waste done on the land in lease, by whomsoever it may be committed.” “ Tenant by the curtesy,” says Lord Coke, “ tenant in dower, tenant for life, years, &c., shall answer for the waste done by a stranger, and shall take their remedy over.” (1 Inst., 54, a; 2 id., 145, 303.) In Cook v. The Champlain Transportation Company (1 Denio, 91), which was an action on the cáse, by the assignees of an unexpired lease for a term of years, for negligently destroying a mill erected by the plain tiffs on the premises, it was held that the destruction of such building, by means of the negligent acts of a third party, was waste, for which the tenant was responsible to the lessor, and that the lessee or his assignee was entitled to recover the whole value of such building, in an action against the party guilty of the negligence. In the'present case, it appeared on the trial that the building at the time it fell was actually occupied by a third party, under the plaintiffs; but no certain term of letting was either alleged or proved. This raised no presumption against the plaintiffs’ right to the reversion of. the unexpired term. On the contrary, the presumption is, if any, that there was only, at most, a tenancy for the year.

A remaining question arises, on an exception to the charge of the judge, in respect to the damages. The judge charged that if the plaintiffs were entitled to recover at all, they were entitled to recover the amount of damages they had actually sustained, including loss of rent from the Syracuse and Oswego line. It is nofseriously questioned that the plaintiffs were entitled to recover, as damages, the cost of repairing and putting the building in as good condition as it was before the injury. The defendants recognized their obligation to pay the- plaintiffs for their repairs;- and the plaintiffs acted on this recognition in making them. It was not in the nature of a contract between the parties, but of an admission, by the defendants, of the extent of the damage to the building, and of their liability for the inj ury. But if there had been no recognition, by the defendants, of their obligation to pay for the repairs, the plaintiffs would have been entitled to recover from them the cost of putting the building in as good condition as it was before it was injured by their negligent acts. These were damages that the plaintiffs had actually sustained. But was loss of rent suffered by the plaintiffs in consequence of the injury a proper item of damages? It can scarcely admit of a question that, had the plaintiffs themselves been using and occupying the premises at the time of the injury, the loss of such occupation and use would have been a proper subject of damage. It is said, however, that as there was no special agreement to put or keep the building in repair, the Syracuse and Oswego line were bound to pay the rent, even though the premises were untenantable or destroyed; and that an abatement of rent, voluntarily made to them, was not a legal element of damage. The charge of the judge was, not that the plaintiffs were entitled to recover, as damages, any sum of rent voluntarily abated to the Syracuse and Oswego line, but damages actually sustained, including loss of rent from such association, in consequence of their being disturbed in the occupation, and deprived of the use of the premises. If the association was not bound to pay rent, while deprived of the use, it was a loss necessarily suffered by the plaintiffs, in consequence of the injury. The building was a temporary structure, erected by the plaintiffs for their own use an¡i accommodation, and to rent, under a ten years’ lease. If the association to which they hired it was not bound to pay rent, whilst not enjoying it,— and I think it was not, under the proof in the case,—■ or if such association could look to the plaintiffs for redress for their loss of occupation, the latter were the parties damnified. There was proof, on the trial, that the building injured was untenantable for half the season, and that the plaintiffs allowed to the’ Syracuse and Oswego line a deduction on their rent of $150. It may be, that the jury understood from the charge of the judge that they might measure the damages accruing from a loss of rent by the amount so allowed. But this was not the idea suggested in that portion of the charge singled out for exception. The idea was that the plaintiffs were entitled to recover, as an item of damage, the loss of rent from the Syracuse and Oswego line, occasioned by the latter being deprived of the occupancy and use of the premises for half the season, by reason of the injury. It is manifest, however, that if the jury were misled in the respect intimated, no inj ustice was thereby done to the defendants. If the Syracuse and Oswego line were not bound to pay rent, whilst the premises were incapable of occupation and use (and this was for half the season), the sum of rent lost by the plaintiffs, by reason of the injury, was greater than that allowed.

It is not, however, clear, that if the charge is to be construed as an instruction to the jury to measure the plaintiffs’ damages for loss of rent by the amount deducted, it was such an error as should necessarily lead to a reversal of the judgment. Even though the occupants, but for the deduction, might have maintained an action against the defendants for this portion of the damages, they had the right to look to the plaintiffs for redress for their loss of occupation; and having done so, the plaintiffs are the parties damnified, and, as the only real parties in interest, it seems to me are entitled to maintain the action.

The judgment of the Supreme Court should be affirmed.

Allen, J.

It was alleged in the complaint and admitted by the answer, that the plaintiffs had been, from the 1st of June, 1850, a time long -anterior to the injury complained of, and still were, “ lessees of certain lots and premises on the pier in front of the city of Albany, and had erected thereon certain buildings or warehouses for the use of themselves, their customers, and to rent to others. The damages claimed and recovered were for injuries to Their buildings. The defendants merely denied by their answer that the plaintiffs occupied the premises, a fact not alleged in the complaint or necessary to the action. Actual occupation was not necessary. The interest in the term, and the right of. possession thus admitted, gave the right of action for the injury complained of But it came out upon the trial, upon the cross-examination of one of the plaintiffs’ witnesses, that the building which was destroyed was, at the time it fell, in the actual occupation of the Syracuse and Oswego line, who had hired it of the plaintiffs in the winter of 1852, the excavation by the defendants having been commenced in October or November preceding. The possession of the actual occupants was under a lease from the plaintiffs, but the terms or duration of the lease did not appear. It will not be assumed, in the absence of any averment or proof to that effect, that the plaintiffs had parted with all their interest in the term or the premises. The occupants were sub-lessees of a portion of the premises under the plaintiffs, having a term less than that of the plaintiffs, leaving the plaintiffs a reversionary interest in their unexpired term. If they owned the buildings, with the right of removal at the expiration of their term, the destruction of them was a direct f injury, for which an action lay for the present value of the property destroyed. If they had not the right to remove them, then they had become a part of the freehold and the reversionary interest of the landlord, and the plaintiffs were responsible to the landlord for their destrnction by the tortious negligence of the defendants. It was waste, for which the tenants were responsible, and, being bound to answer to the landlord for the., full value of the building, they were entitled to recover the same amount from the wrongdoer. (Cook v. Champlain Trans. Co., 1 Denio, 91.) If they were the owners of the building, they would necessarily be entitled to recover its full value: within the principle of the case cited, a like result would follow if the building, by annexation, had become the property of the landlord. Again, as tenants, they had an interest in the building as a source of profit in itself and as necessary to the profitable occupation of the demised premises, which gave them a right of action for its destruction. The measure of damages depended upon the value of the interest 'destroyed, or, in other words, the actual pecuniary loss to the plaintiffs, as tenants, for the unexpired term. The defendants contend that because their wrongful act may have damnified the inheritance, giving an action to the reversioner, the tenant could have no action for the injury to him. But each may have a remedy for the damages sustained in respect to his particular estate. If the same act deprives the tenant of the temporary enjoyment of his term, and also injures the inheritance, the injury to the tenant is not merged in that done to the owner of the larger and reversionary estate. Whether the measure of the plaintiffs’ damages should be the value of the building, the cost of its repair or the value of its use during the residue of the term, or what should be the true measure of damages, was not made a question upon the trial. It was assumed by the defendants, by not excepting to the rule of damages suggested by the court or suggesting any other, that the right of the plaintiffs to recover any amount being established, the principle upon which the damages in respect to the building should be assessed was correct as laid down by the court.

In other words, the only objections touching this branch of the case were to the right of recovery, and not to the amount or the items. The right upon the facts is undoubted. This is not an action of trespass, which is a possessory action, in which the plaintiff must either have the actual possession or the title, with the right of immediate possession, but is an action on the case for the recovery of damages, as well consequential as direct, to the possession as well as the estate or other interest of the party.

I have thus far considered the objections to the title of the plaintiffs. The only other exception is to the cause of action as alleged and proved. The principle so ably discussed in Farrand v. Marshall (21 Barb., 409), is not involved in this action, and, important and interesting as it is, cannot be decided by this court. The complaint is for so carelessly and negligently enlarging and widening a certain cut or opening in the pier, that, by and through the carelessness and negligence of the defendants, the buildings of the plaintiffs were thrown down and destroyed. Evidence was given tending to show that, with proper and sufficient dispatch and care, the work could have been done so as not to have injured the plaintiffs’ building, and that with proper precautions no injury would have been occasioned; and the defendants’ liability was made by the judge, in submitting the cause to the jury, to rest upon the fact of their negligence in making the excavation. It was no where suggested in the pleadings or upon the trial, that the land and buildings of the.plaintiffs had fallen, by reason of the excavation having been so near the dividing line between the plaintiffs’ and defendants’ land, as to take from the former its natural support so that it could not stand by its own cohesion, by reason whereof the defendants had become liable to respond in damages. On the contrary, the right to make the excavations in a proper and careful manner was conceded, and it was submitted to the jury whether the work of excavation had been negligently conducted by the defendants, and they were told that if it had been so conducted the defendants were liable for the injury. Whatever were the rights of the defendants in the occupation and improvement of their own premises, they were held to ordinary care and diligence in such occupation and improvement. A party is not excused from the. consequences of his own negligence by the fact that the negligence occurs upon his own premises, and in the performance of an act lawful in itself. A lawful act may_ not be performed in a careless and negligent manner.to the injury of a third person with impunity. If the hayrick of A on his own premises ignites from his negligence, whereby the property of B is burnt, A is liable to an action on the case. (Vaughan v. Menlove, 7 C. & P., 525.) So if A set fire to his own fallow ground, as he may lawfully do, and the fire spread to the woodland of his neighbor, no action lies against A, unless there was some negligence or misconduct of himself or his servants, and in such case the action lies. (Clarke v. Foot, 8 John., 421; Bush v. Brainerd, 1 Cow., 78; Baily v. Mayor of New York, 3 Hill, 531, affirmed 2 Denio, 433; Gardner . v. Heartt, 1 Denio, 466 S. C., 2 Barb., 165.) Dodd v. Holmes (1 A. & E., 493), decides this case in principle and upon the ground upon which it was put at the circuit. It was there held that when it was alleged and proved that the defendant so negligently, unskillfully and improperly dug his own soil that the plaintiff’s house was thereby injured, an action lies. All the judges agreed that it was properly put to the jury to say whether the allegations of negligence were proved, and they having found in the affirmative, the cause of action was established. There being some evidence of negligence, the judge at circuit properly refused to decide it as a question of law, and submitted it to the jury. (Foot v. Wiswall, 14 John., 304.)

There was no evidence of the plaintiffs’ negligence, or that their want of proper care contributed to the injury. They had no right to go upon the defendants’ premises to build a wall, drive piles and complete the excavations, or to shore up their own building; and it did not appear that they could have prevented the injury by any act which they could have done upon their own premises or lawfully upon the defendants’ land. Most Certainly there was no evidence of negligence on the part of the plaintiffs so clear and conclusive as to authorize the judge to rule as matter of law that the plaintiffs were, by reason of it, barred of their action. There was no exception to the charge of the judge upon that point, nor any request to submit the question to the. jury. It must be assumed, therefore, that there was no error in the submission of the cause to the jury upon any question connected with the plaintiffs’ acts or omissions, and that the well-established rules of law, as contended for by the defendants, were declared by the judge in his charge to the jury.

There was no error of law upon the trial, and the judgment of the court below must be affirmed.

Selden and Smith, Js., expressed no opinion.

Judgment affirmed


source: Caselaw Access Project

author: Wright, J. Sutherland, J.

license: Public Domain

text:
    Wood et al. v. Orser, Sheriff, &c.
    Calicoes were furnished by the plaintiff to S., who printed them under an agreement by which they were to be sold, and the proceeds, after reimbursing the plaintiff’s advances and commissions and the original cost of the cloth, were to be paid to S. While they were in the hands of a factor for sale, the sheriff, having an attachment against S., served notice thereof on the factor, and required of him a certificate of the advances for which the factor claimed a lien, and left them in his possession, and he sold them. Assuming the general property of the goods to have been in the plaintiff—Held:

    This was not such an assumption by the sheriff of control over the goods, as the property of S., as to render the sheriff liable to the plaintiff as a trespasser.
    The factor having the right of possession, with a lien for advances, the plaintiff could not maintain replevin. '
    The circuit judge directed a verdict for the plaintiff for the value of the goods, less the factor’s advances and commissions. This was error.
    The jury, in their verdict, assessed the value of the goods, and stated that this was to be reduced by the factor’s advances and charges, which they did not assess. This was not a verdict on which any judgment could be rendered; and receiving it was also error.
    The case went to the general term on exceptions, in the first instance, where a new trial was denied, and the court ordered a reference to ascertain the amount of the factor’s advances, by which the verdict should be corrected. This was also error.
    The court had no power to order such reference. -A new trial was necessary, and could not be had at general term.
    Appeal from the Superior Court of the city of New York. Action to obtain the delivery of personal property, and damages for detention, against the sheriff of New York. "Upon the trial there was a verdict for the plaintiff, and the jury furnished some elements for the assessment of damages. The exceptions taken by the defendant were ordered to be heard in the first instance at general term, where a new trial was denied, and a reference was ordered to complete the inchoate assessment of damages made by the jury. The defendant appealed to this court. The facts are sufficiently stated in the following opinions:

      A. J. Vanderpoel, for the appellant.

      Wm. Curtis Noyes, for the respondents.
   Wright, J.

The plaintiffs could only maintain the action by showing that they were the owners of the cloths, and entitled to the possession of them, and that they were tortiously taken and detained by the defendant.

1. As to their title: Between February and June, 1853, the plaintiffs furnished to Smith Brothers, calico printers, near Philadelphia, some 6,000 or 7,000 pieces of cloths, for printing, under an agreement of the following nature: The plaintiffs were to buy the cloths, and Smith Brothers to print them; after being printed, and returned to the plaintiffs, they were to advance one cent per yard on one style of the goods, and one and one-half cents per yard on another style, to Smith Brothers; and, when they were sold, and the cost of the cloths and the plaintiffs’ commissions for selling were deducted from the proceeds of the sales, any balance remaining was to be paid over to Smith Brothers. Of the cloths furnished by the plaintiffs, and printed under this arrangement, 2,096 pieces were sent, in October, 1853, to Hoyt, Tillinghast & Co., of Hew York, to sell on commission, the latter firm agreeing to make an advance on them, of seven and a half cents per yard, and which advance was made, to the amount of $2,900; of which the plaintiffs received $2,100, and Smith Brothers the sum of $800. It was to recover the possession of these printed cloths, consigned for sale to Hoyt, Tillinghast & Co., that this action was brought.

The cloths were originally the property of the plaintiffs; and I think they did not part with the title to them under the agreement with Smith Brothers, under which they were printed. There is nothing in that agreement to indicate a sale of the goods, or to create any title to them, when printed, in Smith Brothers. It created, at most, only a bailment; Smith. Brothers being bound to return the identical goods they received. Be turning others, would not have been a compliance with the agreement. The goods remained the property of the plaintiffs, and. they were only bound to account to Smith Brothers for the printing; the amount of which was to be arrived at in the mode pointed out by the agreement. (Malloy v. Welles, 4 Comst., 85 ; Hurd v. West, 7 Cow, 752; Foster v. Pettibone, 3 Seld., 433; Barker v. Roberts, 8 Greenl., 101; Hyde v. Cookson, 21 Barb., 92.) The only case that would seem to be opposed to this construction of the agreement is that of Jenkins v. Eichelenbergher (4 Watts, 121). But that case differs from the present, in some' material respects; and cannot be sustained upon the principles held by our own courts, in the cases cited. The title to the cloths consigned to Hoyt, Tillinghast & Co., to sell, and which were in their possession after October, 1853, must be deemed to have been in the plaintiffs.

It was not enough, however, that they held the title to enable them to maintain the action; though the judge trying the cause appears to have acted on this assumption. But two questions were submitted to the jury (the judge, although requested, refusing to submit any others), viz.: whether the 2,096 pieces of goods consigned to- Hoyt, Tillinghast & Co., were printed on cloths which had been furnished by the plaintiffs to Smith Brothers, and the value of the goods so consigned to Hoyt, Tillinghast & Co.; and the jury were directed (should they find the.first question submitted to them in the affimative), to render a verdict for the plaintiffs, for the value of the goods remaining unsold at the time of the service of the attachments, deducting advances, expenses and charges up to the time of sale. This was, in effect, withdrawing the question from the jury, and holding, as a matter of law, upon the evidence, that the plaintiffs were entitled to the possession of the goods when the action was brought, and that the defendant, in what-he did, was a trespasser and liable to .an action by them.

This, I think, was error. This plaintiffs, though having a general property in the goods, could not recover unless entitled to the possession when they commenced their action. The cloths were in the hands of Hoyt, Tillinghast & Co., the factors of the plaintiffs and Smith Brothers, to make sale of them, for the purpose of reimbursing the plaintiffs for the cost of the cloths,, and Smith Brothers for the printing. This was in pursuance of an arrangement made by the agent of the parties, and by which arrangement Hoyt, Tillinghast & Co. were to make an advance of seven and a half cents per yard on the cloths. The factors advanced $2,900 in the early part of October, 1853, $2,100 of which went to the plaintiffs, and $800 to Smith Brothers. This action was commenced in May, 1854, at which time sales had been made by Hoyt, Tillinghast & Co., to the amount of $1,968, subject to a deduction for expenses, charges and commissions. Hoyt, Tillinghast & Co. were in the possession of the goods when the plaintiffs brought their action, and were entitled to hold them for their advances. The plaintiffs were not entitled to the possession. I cannot see, therefore, how they were in a position to maintain the action. They could not have maintained trespass, for the sheriff did not interfere with their possession, nor could they have maintained trover, not having the possession, or the present right of possession. To warrant trover, the plaintiffs should have had a present right of possession in the chattels. The possession of the cloths was in Hoyt, Tillinghast & Co., and they having a lien upon them for advances, the right of possession was in them. (Bush v. Lyon, 9 Cow., 52.) But in order to maintain replevin, the plaintiff must show a right to have delivery of the property at the time of the commencement of the suit. The proceeding is partly in rem, and, unlike trespass or trover, which seeks damages only. (Wheeler v. Train, 3 Pick., 258; Sharp v. Whittenhall, 3 Hill, 576.) The provisional remedy, under the Code, for the claim and delivery of personal property, and which was intended as a substitute for the provisional relief theretofore obtained in the action of replevin, provides that the plaintiff, in an action to recover the possession of personal property, may claim the immediate delivery of it. (Code, §§ 206-208.) In this case, the plaintiffs could not have had an immediate delivery of the property; and instead of showing a right to have delivery at the commencement of the suit, they showed affirmatively that they had .not.

Again, conceding the title to the prints to have been in the plaintiffs, and they had the right to have delivery of them at the commencement of the suit, the defendant was not shown to have done anything for which he was liable to an action by any person. Two warrants of attachment against Smith Brothers, as non-residents, were delivered to him, as sheriff, to be executed. One of his deputies went to the store of Hoyt, Tillinghast & Co., and served on the latter a certified copy of the attachment, with a notice indorsed on it, requiring them to furnish him with a certificate of the property held by them belonging to Smith Brothers. The prints were then in Hoyt & Co.’s store, mixed up with other goods, and the deputy-sheriff did not see or touch them. Hoyt & Co., knowing no others interested in the goods than Smith Brothers, furnished the deputy with a statement of the amount of prints received on sale, the amount which they had advanced on the goods, and the amount and parcels which had been sold; the deputy saying that he did not want the property, but only the certificate. He wanted to attach the interest of Smith Brothers. Nothing more was done. The defendant never had the property in his possession or under his control. Neither he nor his deputies ever saw it. Hoyt, Tillinghast & Co., the plaintiffs’ agents, continued in unmolested possession, and made sales of the goods. They had sold to the amount of $631.56, when the deputy-sheriff served a copy of the attachment; they sold to the further amount of $1,337.37, before this action was commenced, and the remainder of.the entire consignment, afterwards and before the end of the year; and at the time of the trial, which occurred in May, 1855, they admitted that they had a balance of money in their hands, due to the account of Smith Brothers, after deducting expenses, charges and commissions, of $1,856.76.

There was no tortious act done by the defendant. He did not take into his possession or under his control the property in question, in defiance or exclusion of the owner. The notice given-by him indicated that he did not intend to interfere with the possession of the goods. It was the notice prescribed by section 235 of the Code, in cases where the right, interest or property, is incapable of manual delivery. What he did would clearly not have rendered him liable to an action, at the suit of Hoyt, Tillinghast & Co., to recover the possession of the property. In fact, the act of the defendant did not amount to an attachment of the property. It was not a case where an attachment could be executed by leaving with the individual holding the property a certified copy of the warrant of attachment, with a notice showing the property levied on. (Code, § 235.) The property was not incapable of manual delivery; and no notice was ever left with Hoyt, Tillinghast & Co. showing the property levied on. After obtaining, the certificate under section 236 of the Code, from Hoyt, Tillinghast & Co., nothing further appears to have ever been done that looked like intermeddling with the goods. This case is not at all like that of Wintringham v. Lefoy (7 Cow., 735). There the officer levied his execution, took the property into his possession, though there was no manual seizing of it, and was about to take it away, and would have done so but for the security given him that it should be forthcoming on the execution. Here was clearly a tortious intermeddling with the goods of another. But in the present case, as the defendant neither took possession of the goods, nor did any act subjecting the goods to his control, nor undertook to control them in defiance and exclusion of the owner, he was not liable to an action as a trespasser. It was said in the court below that the effect of the attachment was to disaffirm the title of the plaintiffs, and was, in legal effect,' an assumption of control over the goods as the property of Smith Brothers, notwithstanding the sheriff did not take actual possession of the goods. But if this was so, and the defendant did nothing in respect to the property but serve the attachment on Hoyt, Tillinghast & Co., and assume to levy it on the interest of Smith Brothers, he would not be a trespasser. The proposition, however, is not sound. As well might it be said that a creditor, by a sale under execution against a mortgagor, disaffirmed the title of a mortgagee under a mortgage in which the right of possession was in the mortgagor. It must have been on some notion of this kind that the judge at the trial refused in the first place to nonsuit the plaintiffs, and afterwards refused to charge that if the defendant did not take into his possession or under his control the property sued for, or did not, at the commencement of the action, detain from the plaintiffs the property sued for, having the same in his possession- or under his control, they could not recover; and charged, as matter of law, that if the title to the goods was in the plaintiffs, the defendant was liable to respond to them for their value.

This case presents singular features. A party not in possession of goods or having a present right of possession, but the possession being in his bailor to. make sale with an undischarged lien on them for advances, brings his action against a third person who has neither disturbed the possession of the ' bailor, nor in any way subjected the goods to his control, nor done anything but serve a copy of a warrant of attachment on such agent, to recover the possession of such goods. Instead-of submitting the questions of fact to the jury under proper instructions as to the law, the judge substantially instructs the jury that, if they found one fact, viz.: that the goods consigned to the agent for sale were printed on cloths furnished by the plaintiffs to the printers, they should find a verdict for the value of the goods remaining unsold at the 'time of the service of the attachments, less advances, expenses and charges of the agent up to the time of sale. Under this instruction, the jury found a general verdict for the plaintiffs, and assessed the value of the property at $5,619.37, being the value as found by them, without any deduction for advances, expenses or commissions. The case is ordered in the first instance to be heard at general term on ■ exceptions. The general term overruled the exceptions, and gave judgment for the plaintiffs, not for the amount of the verdict as found by the jury, but for that amount deducting the advances, charges and expenses of Hoyt, Tillinghast & Co., and, without any authority to do so, ordered a reference to report the amount of such deductions. The property had been sold under the original consignment without any interference on the part of the plaintiffs or defendant with the consignees’ rights; and the court, finding it impossible under the evidence to award a return of -the property, gave judgment for its value,' less the amount of Hoyt, Tillinghast & Co.’s advances, charges and expenses. Yet the only judgment authorized was the alternative one prescribed by section 277 of the Code, viz.: a return of the property, or the valué thereof, in case return could not be had.

The judgment of the Superior Court should be reversed, and a new trial ordered.

Sutherland, J.

I am of the opinion that the complaint in this case should have been dismissed, upon the ground that there was no evidence that the defendant had ever seized or' had possession or control of the goods, for the possession of which the action was brought.

The evidence of Mr. Knight, one of the firm óf Hoyt, Tillinghast & Co., and of Mr. Bensel, the deputy sheriff, who had charge of the service of the attachments, is clear and explicit, that the deputy did not see or take possession of any of the goods.

It is plain, I think, from the undisputed facts as to the manner of the service of the attachments, that the deputy-sheriff did not intend to levy on or seize the goods, but only to attach Smith Brothers’ interest in the goods, or proceeds of the goods, whatever it might be, as property incapable of manual delivery, under section 235 of the Code.

The service was made by leaving with Hoyt, Tillinghast & Co., certified copies of the attachments, with a notice indorsed upon both, to the effect that all the property and effects, rights and shares of stock, with interest thereon and dividends therefrom, and the debts and credits of Smith' Brothers, then in the possession, or under the control, or which might thereafter come into the possession or under the control, of Hoyt, Tilling-hast & Co., would be liable to such attachment, and requiring a delivery of all such property, &c., with a certificate thereof.

Mr. Knight testified, that when the first attachment was served, he told the deputy that they (Hoyt, Tillinghast & Co.), had advanced on the goods, and must hold them; that the deputy said he required a statement of the amount they had advanced on the goods, and the amount and parcels which had been sold, and that he gave him the certificate, which was introduced in evidence.

Bensel, the deputy, testified, that he gave no directions about the goods, only as to the form and the manner of giving the certificate; that he did not say anything about their disposing of the property; that when he served the second attachment, they told him they had not made any further sales.

In my opinion, there was no evidence to show any levy on or seizure of the goods, or interference with Hoyt, Tillinghast & Co.’s possession of the same, that would have authorized them to have brought either trespass or replevin.

The defendant had no right to seize and take into his possession the goods under the attachments. Hoyt, Tillinghast & Co. had a right, by the arrangement or contract under which the goods- came into their hands, and they had made their advances, and to which the plaintiffs were parties, to the possession of the goods, and to retain the possession of the goods and to sell them, for the purpose of reimbursing their advances and getting their commissions. (Brownell v. Carnley, 3 Duer, 9, and cases there cited; Holbrook and others v. Wright, 24 Wend., 148; Gihon v. Stanton, 5 Seld., 476.)

The case of Steif v. Hart (4 Comst., 20), appears to have been a technical decision upon the statute relating to executions only. In that case, the Supreme Court decided ■ that the statute, in authorizing a sale under execution of the interest of the pledgor, authorized the sheriff to remove the property from the possession of the pledgee. This decision was affirmed in the Court of Appeals, solely in consequence of an equal division in the opinions of the members of that court. The statute, by its express words, is confined to sales under executions. In Brownell v. Carnly, above cited, the Superior Court of Hew York held, Oakley, Ch. J., delivering the opinion, that if the decision of the Court of Appeals, in Steif v. Hart, was to be respected and followed, the statute ought not to" be extended, by construction, to attachments. The reasons for so holding, as stated by Chief Justice Oakley in his opinion, seem to me satisfactory.

How, it is not to be presumed, that Bensel, the deputy, in Serving the attachments, did, or intended to do, what he had no no right to do. He probably had a right, under sec. 235 of the Code, to attach Smith Brothers’ interest in the proceeds of the goods, after the payment of Hoyt, Tillinghast & Co.’s advances, charges and commissions; and it is plain, I think, that it waa this interest that he intended to attach; but on the question whether he did seize or levy on, or take possession of the goods, so that either the plaintiffs, or Hoyt, Tillinghast & Co., could maintain an action for their possession, it is immaterial whether he had a right to attach the interest of. Smith Brothers’ in the proceeds, after payment of the advances, &c., or whether, if he had the right to attach such interest, the attachment was properly served for that purpose. Again, conceding that Hoyt, Tillinghast & Co. might have maintained trespass or replevin, the plaintiffs could not, because they had neither the possession nor the right of possession. (Putnam v. Wiley, 8 Johns., 432; Sharp v. Whittenhall, 3 Hill, 576.)

If the plaintiffs can maintain this action, they might have claimed an immediate delivery of the goods (Code, §§ 206, 207, 208); but the plaintiffs had no right to-the possession of the goods without paying, or offering to pay, to Hoyt, Tillinghast & Co., their advances charged and commissions. (See cases first above cited.)

Even conceding that the plaintiffs were the owners and consignors of the goods, and that they could, in a proper form of action, have recovered nominal damages against the sheriff for his. proceedings under the attachments, yet in no action or form of action, on the conceded facts of this case, would they have been entitled to recover against the sheriff the valué of the goods, or of the goods remaining unsold at the time of the service of the attachments, deducting advances, &c.

The goods were in the hands of Hoyt, Tillinghast & Co., as the plaintiffs’ consignees; they were not removed by the sheriff, but were left in their hands, and sold by them under the original consignment without any interference on the part of the plaintiffs or the sheriff. With the proceeds of the sale in the hands of their own consignees or agents, from aught that appears, ready to be paid over after deducting advances, &c., according to the arrangement under which the goods came into the hands of such consignees or agents, would the plaintiffs be entitled to recover of the sheriff the value of the goods, or of the goods remaining unsold at the time of the service of the attachments, deducting advances, &c. ? If so, and such a recovery was permitted, what would be done with proceeds of the sale in the hands of the consignees after deducting advances, &c. ? The plaintiffs certainly, conceding their ownership of the goods, would not be entitled to it, after having recovered of the sheriff the value of the goods.

The goods of A B, in the hands of his agent for sale, are levied on by the sheriff as the goods of 0 D, but not removed. The agent afterwards sells the goods. Can A B sue the sheriff and recover the value of the goods, with the proceeds of the sale in the hands of his agent ? It appears to me that he cannot, unless he could do so with the proceeds of the sale in his own pocket.

I am of the opinion, then, that the direction given by the court to the jury "in this case, if they found the first question. submitted to them in the affirmative, then the plaintiffs were entitled to a verdict for the value of the goods remaining . unsold, deducting advances, expenses and charges up to time of sale, was erroneous, irrespective of the form or nature of the action.

And considering that the action was to recover the possession of the goods, the direction was erroneous. It should have been, if they found in the affirmative on the first question submitted to them, to find a verdict for the. plaintiffs for the goods remaining unsold, and assess their value and the damages for the detention. (Code, § 277.) It appears to me, that the direction to the jury ignored the form of the action, and so, indeed, did the whole trial and the judgment. I think, also, that the verdict and judgment were both irregular.

The jury found a verdict for the plaintiffs, and assessed the value of the property at $5,619.37. They accompanied this verdict with a statement, which must be taken as part of the verdict, showing that the $5,619.37 was the aggregate value of all the goods sent to Hoyt, Tillinghast & Co., at different times and in different parcels, less the amount of sales up to the time of the attachment, and stating that this $5,619.37 was the amount due to the plaintiffs, from Hoyt, Tillinghast & Co., subject to their advances, commissions, guaranty, interest and expenses usual in such cases, without ascertaining, finding or stating, the amount of such advances, &c. If judgment on this verdict had not been suspended until the motion for a new trial at general term was heard, I do not see how any judgment could have been entered on it. The alternative judgment prescribed by the Code, (§ 277,) could not have been entered, for it is plain from the statement that the jury did not intend to find a verdict for the plaintiffs for the value of the goods, or of the goods remaining unsold, without deducting advances, &c., or that in case the goods or the unsold goods could not be delivered to the plaintiffs, they should have execution for their assessed value without deducting advances, &c.; and a judgment merely for their found or appraised value, less the amount of such advances, &c., could not have been entered on the vérdict, for the jury did not find or state, in accordance with the direction of the court, the amount of such advances.

The general term, .after denying the motion for k new trial, undertook to correct or supply this omission of the jury .to find the amount of the advances, &c., by ordering a reference to ascertain the same. This was, in fact, a trial of the action at general term. I suppose that the court, at general term, sitting as an appellate .court merely, could not try the action, or make the order of reference. Section 270 of the Code was not intended to confer on the court at general term the power to direct such a reference. Considering the nature of the action, I do not see how such ah order of reference could have been made at the trial, or at special term, without the consent of the parties.

The judgment which was entered on the verdict of the jury and the report of the referee, not being in' the alternative for the possession of the goods, or for their value, if a delivery could not be had, but for the amount of the verdict, deducting the amount of the advances, &o., as found by the referee, was also erroneous, in point of form. (Code, § 277; Fitzhugh v. Winan, 5 Seld., 559.) But this error in point of form might possibly be corrected, if the jury had found the amount of the advances, &c.

Upon the whole, conceding that the finding of the jury on the question of fact, whether the goods in question were printed on cloths furnished by the plaintiffs, was conclusive, and that the property or title of the goods in question was in the plaintiffs, in my opinion the judgment of the Superior Court should be reversed, on the grounds above stated.

It is not necessary, thérefore, to examine or decide the question of title to the goods, as between the plaintiffs and Smith Brothers; nor the question of their respective rights in or to the proceeds of the sales of the goods, less the advances, &c.

As to the first question, the decision of it would mot, probably, be of any practical use to the parties; for it is not to be supposed that the plaintiffs could, on a second trial, by other or further proofs, show a right to maintain this action for the possession of the goods, conceding the general property in the goods to have been in them, at the time of the commencement of the action. As to the second question, there can be no amendment of the pleadings in this action to put the title to the proceeds of the sales of the goods, less advances, &c., in issue. I would observe, however, that I do not think there would be much difficulty, on the facts presented in this case, in determining either question.

The judgment of the Superior Court should be reversed, with costs.

Denlo, Ch. J., and Selden, J., took no part in the decision.

Judgment reversed, and new trial ordered


author: Smith, J.

text:
    Lomer v. Meeker et al.

    It is error to refuse a nonsuit, where the uncontradicted evidence for the defence establishes usury.
    That the jury may choose to discredit evidence not impeached and not incredible upon its face, is no reason for submitting it to them.
    In an action against maker and indorser of a note, either defendant may have the complaint dismissed at the trial.
    Appeal from a judgment rendered in the New York Common Pleas. The action was upon a note for $1,000, made by Meeker and Maidhof, dated June 18, 1857, payable to the order of William Bock, three months after date. Bock indorsed the note, and the plaintiff claimed to be the owner and holder. Meeker and Maidhof only defended, and set up in their answer that they made the note for the accommodation of Bock, and delivered it to him without any consideration, and that Bock procured the plaintiff to discount it at a usurious rate of interest, to wit, that, "by an agreement between them to that effect, he paid the plaintiff-$100 for the interest upon the note for three months, the time it had to run.- On the' trial, the defendants called Bock as a witness, who testified that the note was borrowed of Meeker and Maidhof to raise money on for his accommodation, without any consideration being paid by him to them for it, and that he got the plaintiff to discount it by giving him $100, which was a little over three per cent per month for the time the note had to run. There was no conflict in the testimony. Upon this evidence the casé was closed; and the defendants moved that the complaint be dismissed, on the ground that the proof showed that the note had been discounted at a usurious rate. This motion „ was denied, and the defendants excepted. The case was then submitted to the jury, and a verdict found for the plaintiff. The judgment thereon having been affirmed at general term, the defendants appealed to this court.

      A. L. Pinney, for the appellants.

      Titus B. Eldridge, for the respondent.
   Smith, J.

The testimony given on the trial, made out a clear case of usury. The undisputed evidence established a complete defence to the action. There was no conflicting evidence, and nothing proper to be submitted to the jury. It was the duty of the court, in such case, to dismiss the complaint, or nonsuit the plaintiff, or direct a verdict for the defendants. It is a mistake to suppose that, because the evidence came from the defendant, after the plaintiff had rested, the case must go to the jury. In Pratt v. Hull (13 Johns., 334), it was held to be the duty of the court to nonsuit when the evidence offered by the plaintiff did not support his action, and that it was error to refuse the nonsuit, for which a bill of exceptions would lie. In 19 Johnson, 158, Judge Spencer says: “If the court can rightfully nonsuit the plaintiff upon undisputed facts, when the law is against him, they ought to do so; and the refusal to do it is error in point of law." This, I think, has ever since been regarded as settled law in this State. It was questioned, for some time afterwards, whether the court could nonsuit after evidence given by the defendant., This question was settled in the case of Rudd v. Davis (3 Hill, 287), affirmed by the Court for the Correction of Errors (7 Hill, 529). The right and duty to nonsuit are correlative. The right to nonsuit implies the duty, and error lies if the Circuit Judge refuses to nonsuit in a proper case. This, I think, is now the ^ell-settled rule in this State. The judge, in this case, should, therefore, have nonsuited the plaintiff, or dismissed the complaint, which is equivalent to a nonsuit. •The argument is, that this could not properly be done, because there was a question of credibility raised in respect to the witness Bock, who proved the usury. But this objection is untenable. The witness was not impeached or contradicted. His testimony is positive and direct, and not incredible upon its face. It was the duty of the court and jury to give credit to his testimony. The positive testimony of an unimpeached, uncontradicted witness cannot be disregarded by court or jury arbitrarily or capriciously. They are bound to believe, for judicial purposes, such testimony, and it would, in an instance like this, be the clear duty of the court to set aside the verdict of a jury founded upon a disbelief of clear, uncontradicted and undisputed evidence.

The point that the motion to dismiss the complaint could not be granted, 'because the plaintiff was entitled to judgment against the indorser, Bock, is not sustainable. The plaintiff was undoubtedly entitled to judgment against Bock, as it does not appear that he made any defence, and he clearly could make none upon his own testimony. He negotiated the note and represented' it to be good, and would probably be estopped from asserting to the contrary, in an action against him thereon. (2 Denio, 621; 3 Kern., 314.) But the defendant’s motion to dismiss the complaint, I do not think should be considered or construed as including Bock. It was made in behalf of the makers, Meeker and Maidhof, who alone defended. It was made upon the proof offered to make out a defence which was only available to them, and no reference made to Bock. The plaintiff could have severed, and had a separate judgment against him. Under the former practice, one defendant could not have judgment of nonsuit when a joint defendant had suffered default. But the modern rule is otherwise (Murphy v. Dolan et al., 5 Barn. & Cres., 178 ; Jones v. Gibson, id., 768; Murphy v. Johnson, 7 Dowl. & Ry., 619); I think the practice and rule is otherwise under section 274 of the Code, and particularly, as in this case, when the action is against maker and indorser. In such action, a plaintiff may sever, and either defendant dismiss the complaint. (1 Code Rep., N. S., 346; 17 Barb., 446.)

I think the judgment in this case should be reversed and a new trial granted, with costs to abide the event.

Wright, Selden, Gould and Allen, Js., concurring.

Judgment accordingly.


author: Smith, J. Denio, Ch. J., (dissenting.)

text:
    Ladue et al. v. Griffith et al.

    A warehouseman at Buffalo was also' a carrier on the Erie canal, and used to receive freight from the west and forward it to the east by the first boat going, whether his own or that of other carriers. He received goods shipped from Detroit addressed to his care at Buffalo and marked “ to go from Buffalo to East Albany, at 30 cts. per 100 lbs.” The presumption from these facts alone is that the goods came to his possession as a carrier, and having been burned without his fault while in his warehouse awaiting transportation, he is liable for their value.
    Public policy in this country of long routes and«frequent transhipment forbids any intendment which would favor an intermediate carrier in divesting himself of that character and assuming the more limited responsibility of a forwarder.
    Appeal from the Supreme Court, where the plaintiffs sought to recover damages on account of the destruction of a parcel of leather which, they claimed, had been entrusted to the defendants, as common carriers, and which was destroyed by an accidental fire, in the defendants’ storehouse at Buffalo, on the 4th of July, 1851. The trial was before a referee, who found, these facts: The plaintiffs were the owners of twenty-seven rolls of rough leather, and in the latter part of June, 1851, they caused it to be shipped at Detroit, on board the steamship Hudson, bound for Buffalo, to be transported east, accompanied by a document in the form of a bill of lading. This paper specified the property, and,stated the charges of the forwarding agent at Detroit at $1, that the lake freight was $4.04, and that it was to go from Buffalo to Bast Albany at 30 cents per 100 lbs. It was addressed, in the margin thus : “ Leander Warren, Leicester, Mass., via Clappville Depot. To be - delivered at Bast Albany; care J. M. Griffith & Co., [the-defendants] Buffalo.” It did not appear to be signed by the master, or by any one, except H. M. Strong, the forwarder at Detroit.
    The defendants’ place of business was at Buffalo, "where they were engaged in transportation on the Erie canal from that city to Troy and Albany. They were also forwarders and warehousemen, and they were accustomed to receive daily, from the west, property consigned to them in the same manner as the leather in question, and to ship the samé to its destination at the east by their canal line, or by other boats on the canal, whichever left first. On the arrival of the vessel from Detroit, on the first day of July, the leather was taken to the defendants’ storehouse, and they made an indorsement on the bill of lading as follows: “ Received and paid charges, John M. Griffith & Co.” It remained in the storehouse until it was burned as before mentioned.
    The defendants insisted that, as to this property, they were storehouse keepers and forwarders, and'not common carriers. The referee held with the defendants on that question, and reported in their favor, and the judgment being affirmed at a general term, the plaintiffs appealed to this court. The ¿ase was submitted on printed points.

      Solomon G. Haven, for the appellants.

      John L. Talcott, for the respondents.
   Smith, J.

When the property in question was delivered on board the steamboat at Detroit, marked and consigned to Leander Warner, Leicester, Massachusetts, it was so delivered for transportation to that place.

It was known to the shipper, doubtless, that the steamboat Hudson could carry it no further than Buffalo; and it was therefore consigned to the care of the defendants at that place, who were carriers upon the Erie canal, to be carried or forwarded by them by canal, in the regular course of business, to Albany, and then to deliver the same at East Albany, at the railroad depot, to be further transported by the Western Bail-, road Company, via Clappville depot, to Leicester, Massachusetts. The direction upon the bill of lading, consigning the leather to the care of the defendants at Buffalo, made it the duty of the master of the steamboat to deliver it to them, and gave them the right to receive it from him; and thus secured to the defendants the profits incident to the transhipment, storage and carriage of the property, until its transportation by canal was completed, and the property delivered at the railroad depot at East Albany.

No right or duty in respect to such property was conferred by the owner upon any person, after its delivery on board the steamboat at Detroit, except that of carriage, and such as was incident to its transportation, until its delivery to the consignee at Leicester, Massachusetts. The proprietors of the steamboat Hudson received it as carriers, and so. did the defendants, subject, respectively, to all the duties and responsiblities of common carriers.

These goods were placed by the defendants in their warehouse, for their own convenience and for the purpose of being carried; and when goods are so stored, the carrier is responsible for.their safe keeping. (Angell on Carriers, § 131, p. 130, and § 144; Story on Railroads, 536.)

The owner of this property had no occasion to have th'e same placed in a warehouse at Buffalo for any purpose except such as pertained to its safe keeping during its transportation. It was not intended to be stored in warehouses at Buffalo for any purpose. It might doubtless have been transferred immediately from the steamboat to some canal boat at Buffalo; but if the defendants chose for any purpose to put it in their warehouse, it was to subserve their interests, and was at their own risk. The claim of the defendants to escape responsibility for the loss of these goods, upon the ground that they were simply warehousemen, and received them in that capacity, we think entirely-untenable.

When a person is both carrier and warehouseman, it is well settled that, if the deposit of the goods in the warehouse is a mere accessory to the carriage, and not subject to any particular order of the owner, or if they are deposited for the purpose of béing carried further, the responsibility of the party having them in charge is that of' a carrier. (Ang., § 133, and Blossom v. Griffin, 3 Kern., 569, 572.) But when goods are deposited in a warehouse subject to the further order of the owner, the case is otherwise. In such case, as Judge Buller said, in Garside v. The Proprietors of the Trent and Mersey Navigation Company (4 Term, 581), “ The keeping of the goods in the warehouse is not for the convenience of the earner, but of the owner of the goods. In such case, the rights and duties and responsibilities of warehousemen would attach to the person having the goods in store.” But this rule cannot apply to any person having the charge or custody' of the goods while they are in transitu. While the goods are in the process of transportation from the place of their receipt to the place of their destination, it will never do in this country, in my opinion, to subject them, in the hands of any carrier, or by his act or order, to the responsibilities of a mere warehouseman. The carrier at common law is an insurer of the goods as against all accidents and perils, except such as result from the act of God or a public enemy. A warehouseman is only responsible for ordinary care, and is merely responsible for loss or injury resulting from his own default or negligence. Millions of property in value in this country is in the constant possession of carriers engaged in- transporting it from one place to another. In this particular, it may truly be said that men cast their bread upon the waters, expecting to see it again ,at a distant point after many days. Goods are shipped, and delivered to carriers by land, at the seaboard or in the interior of the country, for transportation to distant points, with a simple direction- indorsed of the name of the owner or consignee and the place of delivery. It would never do to hold _ that at any intermediate point such goods, at the option of a carrier, might be stored in a warehouse, and the carrier relieved' thereby of his proper responsibility. If the defendants had owned the steamboat in which these goods were shipped at Detroit, .no one would pretend, I think, that they could store them at Buffalo in a warehouse, at the risk of the owner, for their own convenience.

I conceive the responsibility of the defendants, in respect to these goods, after they came in their possession, precisely the same, so far as related to their storage at Buffalo, as though they had been carriers for the whole distance from Detroit to Leicester, Massachusetts. Where there are several successive carriers who are engaged in the transportation of goods from the place of their reception to the place of their destination, the liability of each carrier will commence with the reception of the goods, and will continue until they are delivered, according to the usage of the business, to the next carrier in the line of the transit. (Vanhouten v. St. John, 6 Hill, 158.) When a carrier deposits property in his own warehouse at some intermediate place in the course of his own route, or at the end of the route where it is his duty to deliver it to the owner, his duty as carrier is not completed, and he will remain liable as carrier for any loss for which common carriers are ordinarily responsible. (Story on Bailments, § 447, 536; Forward v. Pittard, 1 Term, 27; Hyde v. Trent Navigation Company, 5 id., 380.) The defendants, I think, are responsible as carriers of the property in question upon the same principle. It was received and stored by them in their capacity or character as carriers as much as if they had received it at Detroit.

. I think the judgment of the court below should be reversed, and a new trial granted, with costs, to abide the event.

Davies, Wright, Selden and Sutherland, Js., concurred.

Denio, Ch. J., (dissenting.)

The defendants’ liability depends upon the character in which they held the property at the time of its destruction by fire. If their possession was that of common carriers, they were insurers' against loss by an accidental fire, that loss not being embraced in the two well-known exceptions to a carrier’s liability; but if the leather was only stored with them, they were not liable except for actual negligence, which was not pretended.

The facts that the defendants kept a storehouse, and that the goods were deposited in it when burned, are not conclusive in their favor; for if such deposit and storage were only incidental to the performance of an undertaking entered into by them to carry the goods their possession was that of common carriers. That point was decided in Blossom v. Griffin (3 Kern., 569), in an action against the same defendants, to recover for the loss of goods consumed by the same fire, in which the plaintiffs prevailed. But in that case the defendants received and stored the goods under a contract with the owners to carry them to New York by their line of canal boats. They received and placed them in store for their own convenience, to enable them to perform their contract as common carriers. We considered that they held them in that character from the time they first obtained the possession. So in Hyde v. The Trent and Mersey Navigation Company (5 Term, 389), where the placing in store occurred at the other terminus of the transit, from which store they were to be taken in carts to the residence of the consignees. The goods having been destroyed while in the store by an accidental fire, the carriers contended that they were only warehousemen'; but the judges were strongly of the opinion (though the decision eventually turned on another point), that, as the defendants received the goods in the capacity of carriers, and as the engagement was to carry and deliver them to the consignee, the goods remained in their custody as carriers the whole time.

In the present case, there is no evidence that the defendants undertook to carry these' goods on the canal, or to carry them at all. If their boats had been the only means of carrying by water east from Buffalo, or if, by the course of their business, they forwarded goods which had been taken into their storehouse only by their own boats, a presumption would have arisen, from their receiving them from the steamer into the storehouse, that they had contracted, not merely to store and forward them, but to store and carry them. No such inference, however, can arise, where their habit of business was to forward by the first boats going east which would take them. If the fire had not occurred, it is just as probable that they would be sent forward by other lines as that they would be sent by their own. Suppose they had been sent by another line, the defendants never would have been carriers of the property at all, and yet they would have performed their whole duty respecting the goods. When they were placed in their store, they were certainly warehousemen; and whether they would ever hold any other relation to them, depended upon other facts, to take place afterwards; namely, whether they would have boats of their own ready to take them before an opportunity to send them by other boats should arise. Until this should be determined by their loading them on board their own boats, or distinctly contracting to do so, I think they were not chargeable with any other duties or responsibilities than those which beldng to forwarders and keepers of a storehouse.

Stress has been laid upon the circumstance that the memoranda attached to the bill of lading do not in terms contemplate a storage anywhere, until the leather should reach Albany. The price which the shipper was willing to pay for the canal transportation is mentioned, but nothing is said about charges for storage. Still, if the plaintiff contemplated that they should be carried forward by canal, as he certainly did, he expected that the usual incidents of such a transportation would take place. We assume that the nature of the business rendered it necessary, or at least convenient and proper, that the goods should be put into a storehouse at Buffalo, in order to be laden from thence into a canal boat. The statement that the goods'were to be in the care of the defendants at Buffalo, was an intimation that they were to attend to that service if necessary to be done. In the absence of proof to the contrary, we are to intend that the plaintiffs were acquainted with the nature of the defendants’ employment, and their general course of business. If they knew that, they were aware that the defendants would forward them by the first convenient opportunity, whether by their own or by other boats. They cannot, therefore, be considered as tendering to the defendants the possession of the goods, to be carried only by them. They must be understood as placing them in the defendants’ hands to be dealt with according to the usual course of business at that point, and not necessarily as carriers on the canal.

I am, therefore, of opinion that there was no error in the ' judgment of the Supreme Court, and that it should be affirmed.

Gould and Allen, Js., concurred.

Judgment reversed, and new trial ordered.

CASES DETERMINED IN THE COURT OF APPEALS OZ1 THE STATE OF YORK, Deceniber Term, 1863.


author: Selden, J.

text:
    Hadden v. The People.
    Procuring the intoxication of a sailor with the design of getting him on shipboard without his consent, and taking him on board in that condition, is kidnapping, under our statute (2 E. S., p. 664, § 28); and it is immaterial whether the offender did the acts, or any of them, in person, or caused them to be done.
    Where the intent and expectation is that the seaman will be carried out of this State, the offence is complete although the -ship be not, in fact, destined to leave the State.
    Parol evidence' is admissible of the destination of the ship, though the witness giving it state that he had cleared her at the custom-house, and the clearance was in writing.
    The plaintiff in error, Hadden, was convicted, in the Court of General Sessions of the Peace of the city of New York, in November, 1855, upon an indictment charging that he did, ■ on the 28th day of September, 1855, in the first ward of that city, “with force and arms, and without lawful authority, willfully, unlawfully and feloniously, kidnap one Eobert Wallace, then and there being, with intent to cause the said Eobert Wallace to be sent out of the State of Hew York, against his will, against the form of the statute,” &c. A second count charged the doing of the same acts, “ with intent to cause said Eobert Wallace to be held to service against his will, to wit, as a seaman on board of a certain vessel called the West Point, against the form of the statute,” &c. A bill of exceptions was taken upon the trial; and, upon the removal of the record, by certiorari, into the Supreme Court,, a new trial was denied, and the prisoner sentenced, by that court, to two years’ imprisonment in the State Prison. To review that judgment, Hadden sued out this writ of error.
    It appears,- by the bill of exceptions, that Wallace, who was not acquainted. with Hadden, first saw him, on the 29th of September, 1855, in the city of Hew York, near Fulton Market Hadden inquired of Wallace to what ship he belonged ; Wallace replied, to none; that he had just been paid off from the San Jacinto man-of-war, at the Brooklyn navy yard, and was going over to see some of his shipmates. Hadden said he was going over, too, to see some of his boys, and would take him (Wallace) in his boat, and save him ferriage; to which Wallace assented. Another man then came along, and conversed apart with Hadden, Wallace not hearing what was said. Hadden then requested this man to take Wallace to his (Hadden’s) house, saying he would be there in a few moments. The two went to the house, and went up stairs; and, after drinking twice, Wallace, at the end of about half an hour, went down stairs, and Hadden had not then come. Wallace was thbre met by a boatman and a boy, who, he testified, wanted him to go in his boat. To the evidence of what the boatman said, the prisoner’s counsel objected, on the ground that the prisoner was not present, nor proved to have been connected, in any way, with the boatman. The court sustained the objection; but said the acts of the boatman-would be evidence, provided the jury believed there was a-connection between them. To this decision, the prisoner’s counsel excepted.
    Wallace went again up stairs, and dined; and, soon after-wards, Hadden came in and inquired how he got along, and if he would drink; he said yes, and did so. After that, Had-den told him he was going, right off; and the three, Hadden, Wallace, and the person they met in the street, went down stairs together; and then Wallace became confused, and did not know what afterwards occurred, until the next day, when he found himself in the forecastle of the ship West Point.
    Dennis Meehan testified that, on the 29th day of September, as he was going toward Peck slip, he met Hadden, who then kept a sailors’ boarding house; and Hadden asked him if he wanted to ship. He went to Hadden’s house; saw Wallace there; and Hadden soon came in, and said to Wallace, “Come along, I have a boat ready for you;” he then gave Wallace something to drink, and, taking hold of his shoulder, they went out. A few minutes afterwards, Hadden came in, together with another man, whom the witness calls “a runner; ” and Hadden said to him, “ Have you put the man on board the ship?" The runner said, “Yes, I,left him on board.” Hadden then said, “ It’s all right.” Wallace testified that he did not consent to ship on board the West Point. Another witness saw Wallace on board the West Point, and the next day was on board again, and Wallace was brought ashore by two officers. The first mate of the West Point testified that Wallace was on board of that ship, but he did not know who brought him there; .that Hadden had brought some men to the ship.
    On this evidence the prosecution rested, and the counsel for the prisoner commenced his argument for the defence, and remarked to the jury that there was no evidence showing that Wallace was on board the vessel against his will, or that the ship was going to leave the State. The district attorney then asked and obtained leave to prove that the ship was bound on a voyage out of the State; the defendant’s counsel objecting, and excepting to the decision, on the ground that the evidence had been closed. The district attorney then called a witness, and offered to prove by him. that the ship was a Liverpool packet and destined on a voyage out of the State. This was objected to, on the ground that the best evidence of the. destination of the vessel was in writing, and in the custom house. The objection was overruled, and the defendant’s counsel excepted. The witness testified that the West Point was a Liverpool packet, and had cleared at the custom house for Liverpool; that he cleared her for the owners; that such clearance was in writing, and the documents relating to her voyage were in the custom house; that he was not owner or part owner of the vessel, and all he knew about her port of destination was by hearsay; that she was a regular Liverpool packet. The defendant’s counsel again objected to this testimony : the objection was overrruled, and the decision excepted to.
    The defendant’s counsel requested the court to charge the jury:
    1. That there was no proof in the case that Wallace was
    forcibly seized, or inveigled, or kidnapped. ,
    2. That even if the jury believed that the prisoner was present when Wallace left his house, and that, when the runner came back, the prisoner asked him, “ have you put the man on board? ” there is still a failure to show that Wallace was the man intended or referred to.
    3. That there was no evidence that Wallace was- put on board the West Point by the prisoner, or with his knowledge, or by his procurement.
    4. That there was no proof that Wallace was unwilling to go out of the State; and that he being a seafaring man by profession, the presumption of law is that he was willing to pursue his vocation, and that in this case the presumption is strengthened by the fact that he was then out of a situation.
    5. That there was no evidence that what was said by Meehan to have occurred between the runner and Hadden, had reference to taking Wallace on board the ship West Point.
    6. That no act was proved to show that the prisoner put Wallace on board of the ship with intent to cause him to be sent out of this State, or against his will, or to cause him to be held against his will.
    7. That no sufficient evidence was shown that Wallace was • put on board against his will..
    8. That no sufficient evidence was shown that any coercion was used to restrain Wallace on board the vessel against his will.
    9. That no presence of the prisoner, or assent to the putting on board of Wallace by the prisoner, was proved.
    10. That no sufficient evidence was given that the ship -was . destined to leave the State.
    The court refused to charge the jury as requested, on the ground that each request presented a mere question of fact for the consideration of the jury, and not a question of law. The defendant’s counsel excepted to the refusal as to each request

      Francis Byrne, for the plaintiff in error.

      A. Oakey Hall, District Attorney, for The People.
   Selden, J.

The statute under which the - conviction was had in this case, is as follows:

“ Every person who shall, without lawful authority, forcibly seize and confine any other, or shall inveigle or kidnap any other, with intent, either,

1. • To cause such other person to be secretly confined or imprisoned in this State against his will; or,

“ 2. To cause such person to be sent out of this State against his will; or,

“ 3. To cause such person to be sold as a slave, or in any way held to service against' his will, shall, upon conviction, be punished by imprisonment in a state prison, not exceeding ten years.” (2 R. S., 664, § 28.)

The indictment charges the plaintiff in error with having kidnapped Wallace, with intent to cause him to be sent out of this State against his will; and (in the second count) with intent to cause him to be held to service against his will, as a seaman .on board the West Point. There is no charge of “ inveigling,” but of kidnapping only, and the principal question in the case, arising out of the several requests of instructions- to the jury, is, whether there was such an entire want of evidence of the kidnapping of Wallace by Hadden, or by his procurement, or of the intent charged in either count of the indictment, as to require the court to give to the jury any of the specific instructions asked for by the defendant’s counsel.

The slightest examination of the case is sufficient to show that there was evidence bearing upon both these points, the sufficiency or insufficiency of which it was the province of the jury to decide, and that the instructions asked for were properly refused. Whether the promise of the prisoner to take Wallace to Brooklyn, not acted upon, was a promise i,n good faith, or intended merely' to bring him under his influence ; whether giving him drinks were friendly acts, or designed to produce stupefaction; whether there was a secret understanding or conspiracy between the prisoner and the person who guided Wallace to his house, and aided in producing his intoxication, and also between him and the “ runner,” to get Wallace on board -the vessel against his will, or whether the circumstances proved tending to such conclusions were merely accidental; and whether the inquiry addressed to the “runner,” as to putting the man on board the vessel referred to Wallace or to some other man, were all matters for the decision of the jury, and which the court could not properly withdraw from them. An inference against the prisoner on these points involved, as I think, his conviction of the offence. Procuring the intoxication of Wallace, with the design of getting him on board the ship in that condition, without his consent, and thus taking him on board, was a kidnapping within the meaning of the statute, as much so as if it -had been done by force, overcoming his resistance when in full strength; and it was immaterial whether the prisoner did the acts in person, or caused or advised their being done. All the acts which the evidence shows were done by the plaintiff in error might, no doubt, have been done without the criminal intent pointed out in the statute; but, in that case, some circumstances would naturally have appeared, indicating the good faith of the acting party. Unfortunately for the plaintiff in error, all.the circumstances, so far as they are disclosed, lead directly to the conclusion that his intention was in conflict with the statute. No object for the deception and wrong which was practised upon Wallace can be discovered, except to have him. sent out of the State or held to service as a sailor, against his will, on board the West Point. The prisoner’s counsel, in asking the instruction, the correctness of which was admitted, “that the business of providing ships with sailors was a lawful business,-” in substance assumed that such was the intention. If he was sent there to become a sailor, he was to be made such against his will. I think there was not only some evidence to be submitted to the jury on all the points on which instructions were asked, but that the evidence was fully sufficient to justify their verdict.

It was discretionary with the court, before which the trial was had, to allow or refuse the introduction of further testimony, after the summing up had commenced, and the exercise of that discretion this court cannot review.

The exception to the decision that the acts of the boatman would be evidence, provided the jury believed there was a connection between him and the prisoner, is too clearly untenable to need comment. The decision was right in itself, and if wrong no evidence was given under it, which renders the exception unavailable, if otherwise well taken. (9 N. Y., 170.)

It was competent to prove the destination of the vessel, so far as that was material on this trial, by parol evidence, notwithstanding there was written evidence on the subject in the custom house. (Robertson v. French, 4 East., 130; Thomas v. Foyle, 5 Esp., 88.) I am inclined to the opinion that the testimony of the witness, that he had cleared the vessel at the custom house, for Liverpool for the owners, was competent, without producing the' documents from the office showing the clearance. It is only with reference to the intention of Had-den that this testimony is material. The actual destination of the ship was not the point in dispute, but only what Hadden believed, or had reason to believe, on the subject. If he caused Wallace to be put on board of her with the intention that he should be compelled to serve as a sailor there, against his will, the offence charged in the second count of the indictment was made out, though it was not expected that the ship would ever leave New York harbor; and if his intent and expectation were, that Wallace would be carried in the ship against his will, to Liverpool, or elsewhere out of the State of Néw York, the offence was complete under the first count, although the ship was not in fact destined for Liverpool or elsewhere out of the State. But whether the parol testimony in regard to the clearance was admissible or not, the objection was properly overruled, as it embraced not only the clearance, but also the statement of the witness that the vessel was -a regular Liverpool packet, which the witness appears to have given of his own knowledge, and which was clearly admissible. As the objection could not wholly be sustained, it was proper to overrule it altogether.

The judgment of the Supreme Court should be affirmed.

DENIO, Ch. J., also delivered an opinion for affirmance.

All the judges concurring,

Judgment affirmed.