author: Barker, J.

text:
    Adelaide L. Harrington, et al. Respt’s, v. The Hanover Fire Insurance Company, of New York, Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)
    1. Insurance (Fiee) — Action on policy — Right to repair.
    A fire insurance policy, provided that it should he optional with the company to repair, rebuild or replace the property, loss or damage with other of like kind and quality within a reasonable time, giving notice of their intention so to do within thirty days after receipt of the proofs therein required. On the trial of an action on the policy for damages resulting from fire, evidence was given by one of plaintiff’s witnesses that on the day of the fire the local agent of the company met the witness and said that the company would repair and restore the building. Held, that no proof of loss having at that time been made out, and it not appearing that the local agent was authorized to make the election for the company, or that the witness was empowered to represent the plaintiff in any way the notification so given was not sufficient.
    2. Same — Wiiat notice not sufficient within terms of policy.
    The company having shown that they elected to repair, and that plaintiff, A. S. H., was informed of their election, but the time of such choice and notification not having been shown, held, that such notice was not shown to be within the time W'lien by the terms of the policy the company might elect to repair.
    S. Same — Burden of proof.

      Held, that the burden of proof was upon the defendant to show that they had elected to exercise their right to repair.
    Ah Appeal from a judgment of the Wayne county court reversing a justices judgment in the defendant’s favor.

      Frank F. Blackwell, for the appl’t; John Foster, for the resp’t.
   Barker, J.

The appellant issued its policy insuring the plaintiff’s building against loss by fire. Within the life of the policy the building so insured was injured by fire to the extent at least of twenty-five dollars. The point is made by the appellant that the judgment of the county court should be reversed and that of the justice affirmed for the reason that the company offered to repair the building in pursuance of one of the provisions of the policy, and the assured refused to allow the same to be done, and demanded the payment of the damages in money. The policy contains this clause : “ That it shall be optional with the company to repair, rebuild, or replace the property loss or damage with other of like kind and quality within a reasonable time, giving notice of their intention so to do within thirty days after the receipt of the proofs herein required.”

If the company made the election, as permitted under this provision, to repair and restore the building, and gave proper and timely notice thereof to the assured, such election on the part of the company had the legal effect of converting the contract into one to repair, and the plaintiff cannot maintain an action of this character within the rule as established in Morrell v. Irving Fire Insurance Company, 33 N. Y., 429; Beals v. Home Insurance Co., 36 N. Y., 522; Heilmann v. Westchester Fire Insurance Co., 75 N. Y., 9.

After a careful examination of tbe appeal book, I am unable to find sufficient evidence to establish the alleged fact that the company made an election to rebuild instead of paying the plaintiff’s actual damages as they might, appear by competent evidence, and gave notice of such intention to him. It ismot disclosed by the record that this point was made before the justice. The evidence bearing on this question is found in the testimony of two of the witnesses and is very brief. One of the witnesses called by the' plaintiff testified that on the day the fire occurred, he met Cramer, the defendant’s local agent, and told him that the building had been injured by a fire. To this remark, the agent replied that he knew it, and he was prepared to fix the building up as good as it was before, for the company, rather than pay damages; that the company would repair and restore the injured building. ' This conversation between the witness and the agent of the company was before any proofs of loss were made out and served, and it nowhere appears that the local agent was authorized to make the election to rebuild or that the witness who assumed to represent the assured was .authorized to act for them in any capacity whatever, so that the agent’s notification to Cramer of the company’s intention to rebuild was not a competent and sufficient notice.

The same agent also had a conversation with Adelaide, o,n,e of the plaintiffs, on the subject of repairing the building, and he, .as a witness for the defendant, testified in substance, viz.: “ I

had a conversation with Mrs. Harrington; I told her I was getting along with her matters as fast as I could, and she interrupted me by saying I need not put anybody on h.er property to make repairs; she said they would choose their .own builders; she said competent, judges had told them that they were entitled to receive and they wanted the money; my father set the men to work; he was my partner at the time ; I told Mrs. Harrington a man was there repairing.” It may be conceded that this -evidence established the fact that the company had elected to repair, and that.Mrs. Harrington was at that time informed of .such intention. It does not appear, however,, when and where this conversation took place. The terms of the policy giving the company the right'to elect to rebuild the building, also re■quires that notice of such election must be given within thirty -days after the proofs of loss were received by the company. The proofs of loss were received by the company between the 2d and 17th day of March, 1882. It does not appear that the conversation which took place between Mrs. Harrington and the agent of the company was within thirty days after either of the said dates..

The defense relied upon was an affirmative one, and the burden. of proof was upon tlie defendant, to establish tbe fact upon which, it was predicated.

The case was submitted upon printed briefs, and as the appellant makes no other point than the one which we have considered the judgment should be affirmed with costs.

All concur.


source: Caselaw Access Project

author: Angle, J.

license: Public Domain

text:
    Adelaide Richardson, Resp't, v. William Van Nostrand, Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25, 1887.)
    1. Exemplary damages — Vindictive action — Juey may awaed.
    In vindictive action the. conduct and motive of defendant is open to inquiry with a view to the assessment of damages and if defendant in committing the wrong complained of, acted recklessly, wilfully, or maliciously, with a design to oppress and injure plaintiff, the jury in fixing damages may disregard the rule of compensation, and beyond that, they may, as a punishment to defendant, and protection to society, against a violation of personal rights and social order, award such additional damages as they shall deem proper.
    2. Jury — Direction by couet as to matters op pact should be caeeFULLY SCRUTINIZED.
    The jury can not distinguish between a direction in matter of law or fact; they are bound to take the law from the court, and a positive direction from the bench as to a question of fact is as potent as if it pertained to a question of law; and even an expression of opinion, calculated to influence the decision of the jury, in a matter clearly within their cognizance, should be critically scrutinized.
    Appeal from judgment on verdict, and from order denying defendant’s motion for new trial on case and exceptions.
    Slander. Tried at Allegany circuit, October, 1885, verdict for plaintiff $ 150. The complaint contained three counts, the first and second are for calling plaintiff a thief and the third for calling her a whore. • As to the charge of calling plaintiff a thief, defendant among other defences answered in mitigation of damages and in justification of certain transactions, called by the judge in his charge, the “ currant transaction ” and the “ apple transaction.”

      F. C. Peck, for appellant; E. C. Olney, for respondent.
   Angle, J.

The only point on this appeal in made by defendant’s exception to a part of the judge’s charge on the subject of damages. The entire sentence of which the excepted portion is a part, is as follows, the part excepted to being italicized, “ it is due, gentlemen, to good order in society and common decency among neighbors, that you should look to it, if you are convinced that the defendant has made these charges, that he should respond in such damages as you think the plaintiff is entitled to for having charged her with these crimes, and it is well in my judgment, for the defendant — no matter if his version of these transactions be a correct version, — -it is well for him to drop this currant transaction and to cease talking about these currants; he has talked about them, in my judgment, long enough; and it is time he stopped talking about this apple transaction and live in peace and comity with his neighbors.”

The portion of the charge excepted to is decidedly suggestive that in the judgment of the judge the damages should be sufficient to stop defendant’s talk about the currant and apple transactions. It goes further than an instruction to the jury that they might give such damages as would stop such talk by defendant.

In Allis v. Leonard, 58 N. Y., 291, Chief Judge Chtjech says: “ Jurors cannot distinguish between a direction in a matter of law or fact; they are bound to take the law from the court, and a positive direction from the bench as to a question of fact is as potent as if it pertained to a question of law; aiid even an expression of opinion calculated to influence the decision of the jury in a matter clearly within them cognizance should be critically scrutinized.”

In the' present case the language from the bench was : “ It is well, in my judgment, for the defendant to stop, etc. . . . He has talked about them in my judgment long enough, etc.”

In vindictive actions, as they are sometimes called, .. . the conduct and motive of defendant are open to inquiry with a view to the assessment of damages, and if the defendant in committing the wrong complained of, acted recklessly, or wilfully, or maliciously, with a design to oppress and injure the plaintiff, the jury in fixing the damages may disregard the rule of compensation, and beyond that they may as a punishment to the defendant and as a protection to society against a violation of personal rights and social order' award such additional damages as they shall deem proper.” Voltz v. Blackman, 64 N. Y., 444; Brook v. Harison, 91 N. Y., 91-2.

In the charge in the present case the judge nowhere gives the jury any instruction as to the plaintiff’s right to recover more than compensatory damages, or upon the subject of vindicatory damages, except in the sentence in which the excepted portion of the charge is found and which sentence is given above, and that instruction is given with'an announcement of the judgment of the judge as to the allowance of an important item in such damages, the allowance of'which was a question for/the jury to determine. In this we think there was error.

•A new trial should be granted.

All concur.


author: Haight J.

text:
    Laura A. Knowles v. William J. Erwin.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25, 1887.)
    1. PARENT and child — Contract between parties for benefit of third party — What is sufficient consideration.
    J. E., the father of plaintiff and defendant, executed and delivered to his son, the defendant herein, a deed of his farm in consideration of natural love and affection, and the sum of one dollar, and at, or about the same time executed and delivered to him a bill of sale of all his personal property. Defendant thereupon executed and delivered to J. E., a contract in which he undertook and agreed to pay plaintiff §500 without interest, payable $100 annually. Subsequently J. E. delivered the paper to C. M. H., a son-in-law, for safe-keeping, and subsequently the same was delivered to plaintiff. In an action brought to recover the § 500 and accrued interest, Held, that it was evident that it was the intention of J. E. to make a distribution of his estate among his children, and that the relation of parent and child presented sufficient consideration to support the promise.
    2. Same — Third party may recover upon the contract.
    That the consideration being a sufficient one, the case presented simply the question of a promise from one person to another to pay a debt to a third person, and that the right of the third person to recover of the promisee, for such a debt, is unquestioned.
    2. Gift — When executed — May not thereafter be changed without CONSENT OF DONEES.
    The contract having been delivered to O. M. H., was to be presumed to be for the benefit of the daughters of J. E., and at that time it must be considered an executed gift. That therefore J. E. and defendant were powerless to change the same without their consent.
    Motion for a new trial by the defendant upon case and exceptions, ordered by the court to be heard in the first instance at the general term.

      Noyes &. Noyes, for nlaintiff; P. Q. Peek, for defendant.
   Haight J.

Jared Erwin was the father of the plaintiff and defendant. On or about the 11th day of February, 1866, he executed and delivered to his son, the defendant herein, a deed of his farm, consisting of about one hundred acres of land in consideration of natural love and affection and the sum of one dollar and at about the same time executed and delivered to him a bill of sale of all his personal property. The defendant thereupon executed and delivered to Jared Erwin a contract dated February 12th, 1866, in which he undertook and agreed to pay the plaintiff five hundred dollars, without interest, payable one hundred dollars, annually; payment to commence November 15th, 1879. Subsequently, and in the month of October, Jared Erwin delivered the paper to one Carroll M. Humphrey, a son-in-law, to be kept safely, and subsequently the same was delivered to the plaintiff.

This action was brought to recover the five hundred dollars, with the interest accrued thereon. At the conclusion of the plaintiff’s evidence, the defendant moved for a nonsuit on the ground that no cause of action was made out against the defendant ; that the plaintiff had failed to prove any interest in the contract. This motion was denied .and the case was opened for the defendant, whereupon the plaintiff moved for judgment: thereupon the court held and decided that the answer did not set up a defense -to the action, and directed a verdict for the plaintiff for the amount due under the contract. The answer in substance alleged a subsequent agreement between Jared Erwin and the defendant, in and by which the defendant vras released from paying the plaintiff the five hundred dollars under the contract sued upon. The questions thus presented are: First, whether the plaintiff can maintain an action under the contract, and second,'whether or not the subsequent agreement alleged to have been made between the father and son is available as a defense.

It is contended in the first place that there was no privity of contract between the plaintiff and defendant; that the relation of creditor and debtor did not exist between Jared Erwin and the plaintiff; that he owed her no legal duty; and that consequently she could not maintain the action upon the contract.

It is true that the relation of creditor and debtor did not exist, but that of parent and child did, and it is quite evident by the papers executed, that it was the purpose of the father to make a distribution of his estate between his children. And where such relationship exists, it has always been held to present a sufficient consideration to support the promise. [Dutton v. Pool, 1 Ventris, 318, 332.]

The child is the proper object for the bounty of the parent ' and in the final distribution of the parent’s estate he is deemed under a moral duty to .provide for it. This doctrine was even recognized by Comstock, J., in his dissenting opinion in the case of Lawrence v. Fox, 20 N. Y., 268, 279. The consideration being such as is recognized by the courts, the case presents the simple question of a promise from one person to another to pay a debt to a third person. The right of the third person to recover of the promisor for such debt is unquestioned. [Dutton v. Poole, supra; Schemerhorn v. Vanderheyden, 1 Johnsons, 138; King v. Whitely, 10 Paige, 465; Lawrence v. Fox, 20 N. Y., 268; Burr v. Beers, 24 N. Y., 178; The Rogers Locomotive and Machine Works v. Kelley, 88 N. Y., 234.]

We are aware that the case of Lawrence v. Fox has been distinguished and limited, as for instance, it has been -held that the person for whose benefit the promise was made cannot maintain an action to enforce the promise when the promise is void as between the promisor and the promisee, because of the want of consideration or of fraud. [Dunning v. Leavitt, 85 N. Y., 30; Crowe v. Lewin, 95 N. Y., 423.]

But in all cases to which our attention has been called not one has attempted to overrule or disapprove of the principle involved in and decided in that case.

In the case of Wheat v. Rice, 97 N. Y., 296, the action was to reform a contract by striking out certain clauses of the contract to pay creditors, which it was alleged, had been inserted by mistake of the scrivener and without the knowledge or consent of the parties. It was held that the creditors were not necessary parties, and that their appeal was properly dismissed. That a creditor of a firm cannot maintain an action upon an agreement made with the firm by one not a member to pay a portion of the firm’s indebtedness, as no one creditor can show from the contract that it was intended for his benefit or covers any part of his debt. It will readily be observed that this case is not in conflict with Lawrence v. Fox.

Upon the second question, as we have seen, the contract had been delivered to Humphrey. Jared Erwin had other daughters to whom money was to be paid under the contract. The inference is that it was delivered to him for their benefit, and that at that time it must be considered as an executed gift. If, as we have seen, the consideration was valid and sufficient to support the promise, then the rights of these daughters on the delivery of the instrument, became fixed, and Jared Erwin and the defendant were thereafter powerless to change the same without their consent.

It would consequently follow that the trial court properly disposed of the case, and that the motion for a new trial should be denied and judgment ordered for the plaintiff on the verdict.

So ordered.

Bbadley. J., concurs.


text:
    Eliza D. Crane, Resp’t v. Mary Ann Crane, Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed, January, 1887.)

    1. Evidence — Testimony of party in interest to transactions with DECEASED PERSON — WHEN INCOMPETENT — CODE ClV. PEO., § S29.
    In au action for the replevin of articles brought against one claiming title to the property in question as administratrix, testimony given by plaintiff that the property was presented to her by defendant’s intestate, is clearly incompetent under Code Oiv. Pro., § 829. The representative character of defendant not appearing until her testimony was given, an objection then taken to the admission of plaintiff’s testimony as to thé source of her title is in time.
    2. Pleadings — Denial — What sufficient.
    A denial by the answer of every allegation in the complaint not hereinbefore admitted or explained, is sufficient to put in issue the allegations of the complaint not embraced in the exception.
    AN appeal from a judgment entered upon the report of a referee in an action of replevin for a quantity of household goods, a piano, and for some books used in a family library, The plaintiff claimed title to the piano and the library and .some few articles of the household furniture by a gift from her deceased father, George W. Crane, and to a portion of the other items as tbe administratrix of tbe estate of ber deceased mother, Mary D. Crane. Tbe defendant claims title as tbe administratrix of tbe estate of tbe said George W. Crane, wbo, at tbe time of bis death, was ber husband, and she also claimed that all tbe property in controversy was owned by ber late husband at tbe time of bis death and that it was used as his household furniture and library. In her answer tbe defendant pleads ber title as administratrix. Tbe property on being' seized by tbe sheriff was delivered to tbe plaintiff wbo retained the possession of tbe same at tbe time of tbe trial and by tbe judgment it was determined that tbe plaintiff have and retain possession of all tbe property described in tbe complaint and that she recover $144. 38, costs of tbe action.

      Baggett tf Norton, for tbe appellant. F. C. Peek, for tbe respondent.
   Barker, J.

The plaintiff was permitted as a witness in ber own behalf to give evidence in support of ber title to tbe piano and library of conversations and transactions bad with ber late father relative to a gift of tbe same by him to ber. As to these articles she based her ¿itle solely upon tbe alleged gift.

Tbe defendant claimed title as the administratrix of ber late husband.

That tbe plaintiff was an incompetent witness to prove tbe conversation with ber father relative to the alleged gift and the delivery of tbe property by him to herself in pursuance of tbe same admits of no doubt. Code of Civil Procedure, section 829; Holcomb v. Holcomb, 95 N. Y., 325.

Tbe plaintiff concedes that tbe gift was by parol and tbe delivery was a personal transaction between ber father and herself. The plaintiff on ber direct examination, in positive and unqualified terms, declared that she was tbe owner of tbe property, naming tbe items thereof, without indicating tbe nature or source of her-title. On her cross-examination it was revealed that she claimed tbe piano and tbe books by virtue of a gift from ber father. Tbe defendant moved to strike out so much of ber evidence as related to the conversations with ber father, concerning tbe gift of the items of property of which she claimed title from her father as being hearsay, improper, incompetent, and as coming within tbe provisions of tbe Code excluding such evidence. Tbe motion was denied and tbe defendant excepted.

This was error. The objection to tbe competency of the evidence was timely and was brought to tbe attention of tbe court in a proper manner. When "tbe. plaintiff stated in ber direct examination that she was tbe owner of the piano and tbe books she was stating the legal effect of a transaction between herself and the donor, tbe nature and character of which was fully disclosed by ber cross-examination. A perusal of ber testimony suggests that the source of ber title as to those items of the property in dispute was suppressed, so that while giving her evidence no objection could be interposed as to its competency. As the defendant is sued in her individual capacity and charged with a personal tort she could not interpose the objection until she made proof that she seized the property and claimed title thereto as the personal representative of the deceased.

The point that the defendant waived her objections to the evidence is not well made: The plaintiff’s contention that she was a competent witness as against the defendant for the reason that she is not of the class of persons who can raise the question of incompetency is also unsupported, for the defendant is in fact enumerated as one against whom the plaintiff, as a party in interest cannot give evidence concerning personal transactions or communications with a deceased person. The language of the section is that a party to an action shall not be examined as a witness in his own behalf or interest “ against the executor, administrator, or “ survivor of a deceased person, or the committee of a lunatic, “ or a person deriving a title or interests from, through or “ under a deceased person or lunatic by assignment or otherwise ; “ concerning a personal transaction or communication between the “ witness and the deceased person.” The defendant sets up -a title derived from a deceased person from whom the plaintiff claims she received the property as a gift. A case cannot be stated coming more plainly within the provisions of the’ statute,' "the only proof as to the gift of the books came from the plaintiff, unsupported by any fact or circumstance.

As to the piano there was other proof confirmatory of the plaintiff’s evidence, which, standing alone, tended to prove that there was an absolute gift of the same to the plaintiff by her father. Whether that evidence is sufficient to maintain the gift we need not determine now, for the reason that there must be a new trial, although we might conclude that the gift of the piano was made out by competent evidence. The number of volumes in the library was from twenty-five to thirty, some of them valuable and standard works, and the evidence does not disclose their value, separately or in the aggregate.

This plaintiff claims that her title to the property as averred in the complaint was not put in issue by the answer. The defendant insists, that by a general denial contained therein, the plaintiff’s allegation of title was put in issue. The question presented is, whether the form of denial as used by the defendant is permissible under the provisions of the Code, which provides that the answer must contain ; “ A general or specific denial of each material allegation of the complaint controverted by the defendant.” Section 500. The complaint alleges that the defendant “ wrongfully took, and wrongfully detains from tbe plaintiff, tbe following articles of personal property belonging to tbe said plaintiff.” Then follows a description of tbe property, and tbe complaint then continues : “ In wbicb tbe plaintiff claims property and right to immediate possession of tbe value of $250.” In ber answer tbe defendant alleges in substance, ber marriage to tbe deceased and that she- resided with him at the time of bis death, and that tbe property in dispute was in tbe possession of ber husband at tbe time of bis death and that all the property since that time has remained in ber possession, except the gold watch mentioned in tbe complaint which was never in ber possession ; that she has been appointed tbe administratrix of tbe estate of ber husband, and that all she has done in relation to the property was in ber capacity as administratrix, and not otherwise ; that all tbe property mentioned in tbe complaint, except tbe item before mentioned, belonged to, and tbe title in and to tbe same was in her said husband in bis lifetime and at bis death belonged to bis estate. Then follows tbe concluding paragraph, viz : “ tbe defendant denies each and every allegation in tbe complaint not hereinbefore admitted or explained.”

The denial, general in form, embraced every allegation in tbe complaint wbicb bad not been admitted or explained by tbe previous allegations in the answer. Tbe defendant did not admit nor attempt to make any explanation as to tbe plaintiff’s title. All tbe allegations in tbe answer previous to tbe paragraph containing tbe denial related to the defendant’s own title, stating tbe nature and character of tbe same and tbe person from whom it was derived. • If tbe form of denial is permissible then tbe plaintiff’s title was put in issue. On this question tbe authorities are not uniform. In Calhoun v. Hallen, 25 Hun, 155, tbe form of an answer wbicb denied all tbe allegations in the complaint which were not admitted, qualified or explained, was held to be sufficient to put in issue all tbe allegations in tbe complaint not embraced in the exception. Tbe court cited Allis v. Leonard, 46 N. Y., 688; 22 Albany Law Journal, page 28, as authority for its decision. In Clark v. Dillon, 97 N. Y., 370, tbe question was presented as to the effect of a general denial when put in tbe form as used in the answer before us ; and it was remarked by-the court that such an answer has sometimes been criticised as throwing iipon the opposite party the necessity of first determining the legal question as to bow far tbe facts stated may properly be said to qualify or explain others, before tbe pleader can know what facts are admitted or denied by the pleading and referred to tbe case of Calhoun v. Hallen, supra, wbicb held that tbe same was sufficient, but did not pass upon the question.

We are inclined to follow the ruling in Calhoun v. Hallen and bold that this form of answer while not to be commended is permissible and serves to put in issue all tbe allegations in the complaint not embraced in the exception.

Judgment reversed aad a new trial granted before another referee, costs to abide the event.

All concur.


author: Bradley, J.

text:
    Dwight B. Cowles, Appl’t v. Frederick P. Michel, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)
    1. Contbact — Pop. Manufactube op abticles to be op same quality AND MATEBIAL AS SAMPLE — ACCEPTANCE OP ABTICLES — EFFECT OF.
    Where under a contract a party agreed to furnish articles to he made of like materials and after the plan of an article selected to be used as a pattern, there being no express warranty on the part of the maker, the party for whom the articles are to be manufactured need not receive them if they fail in any essential respect to correspond with those contracted for, but no remedy survives an acceptance unless there be some defect which cannot be discovered or determined except by use.
    2. Befebee — Bindings of fact will not be distubbed when evidence IS CONFLICTING.
    Where the evidence is conflicting, findings of a referee upon questions of fact will not be disturbed on appeal.
    Appeal by the plaintiff from judgment entered on report of referee.
    The action is to recover damages for alleged breach by the defendant of his contract to manufacture for the plaintiff one hundred pumps known as “ Howe’s Lift and Force Pumps, to be made in all respects similar to the one now in the shop of said F. P. Michel ” and complete and deliver them at the defendant’s shop ; ten on 15th June ; forty on 1st July, and fifty by tbe first of August 1877 ; in a workman-like manner, at the price of $4.40, each.
    The defendant denied the alleged breach of the contract, and set up a counter-claim for manufacturing fifty pumps and supplying certain other things to be applied to the use of the pumps, etc.
    The defendant recovered $202.01.

      W. Henry Davis, for appl’t. Patrick McIntyre, for resp’t.
   Bradley, J.

the plain tiff pur chased an interest in the patent for “ Howe’s Lift and Force Pump,” and thus acquired the right to manufacture and sell such pump.

He thereafter made the contract with defendant who had experience in work of that character to make for him one hundred pumps, at the price of $4.40 each, and they to be made similar to a sample pump referred to. The defendant proceeded to make the pumps. And the plaintiff took ten, then fifteen, then twenty-five and paid for them. The defendant manufactured and completed the other fifty. These the plaintiff did not take, but brought this action, alleging that the first fifty were not constructed as the contract required ; that damages resulted to tbe plaintiff as the consequence, and that the defendant did not construct the additional fifty pumps within the time required •by the contract. For these alleged breaches the plaintiff claimed damages. And the defendant sought to recover for the fifty pumps, which the plaintiff had not taken. The- plaintiff had stipulated for pumps to be manufactured of a particular style, and in workmanlike manner. And he was not required to accept them if they failed in any essential respect to correspond with those contracted for.

The referee found, and such finding is supported by the evidence, that the plaintiff accepted the first fifty pumps manufactured, and that there was no express warranty. In that view no remedy survived the acceptance by the plaintiff of the pumps, unless some defect existed which could not be discovered or determined by examination, but could be ascertained only by use. Gaylord Mfg. Co., v. Allen, 53 N. Y., 515. Gurney v. A. & G. W. Ry. Co., 58 N. Y., 358. The liability to damages of the seller of an article manufactured by him, upon the implied warranty that it is free from any -latent defect in the process of manufacture rests upon a different principle. Hoe v. Sanborn, 21 N. Y., 552.

The referee found that, subject to the modifications made by the direction of the plaintiff, the first fifty pumps were substantially as required by the contract, but that when put into use, it was found that the packing in some of them was defective, and he allowed to the plaintiff by way ., of damages, the expense of repacking and resetting some of the pumps. He also found that the last fifty pumps were constructed in such manner as to substantially comply with the contract, and the plaintiff- was not justified in his refusal to accept and pay for them.

There was some conflict of evidence in respect to the manner of construction of the pumps, the quality and fitness of the leather used for the packing etc. ; the cause which made the packing ineflicient, and what took place, and was said between the parties at the commencement and during the progress of the work of manufacturing the pumps . by the defendant. And if the evidence on the part of the defendant fairly represented the truth, it justified the findings of the referee, in all the respects requisite to support the conclusion reached by him. This conflict of evidence presented a question of fact for the referee. And in view of the opportunity had by him at the trial to determine the apparent force of the testimony of the witnesses, we cannot say, that he has not correctly found the facts arising out of such conflict or that his con elusion is so against the weight of the evidence in respect to any essential fact as to justify the disturbance of the result given by the referee.

The judgment should be affirmed.

Haight and Ahghe, J. J., concur.


text:
    George Preuschl and Barbara Preuschl, Appl’ts, v. William F. Wendt, Resp’t, impl'd.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)
    1. INJUNCTION order — Damages allowable on dissolution of — Expenses OF PROCEEDING TO ASCERTAIN ARE ALLOWABLE.
    An action was brought to require the application of the value of one of the two parcels of land upon a mortgage held by defendant on both parcels, plaintiffs obtained an injunction order restraining defendant from bringing any action upon or attempting to enforce the bond and mortgage against the other parcel and the plaintiffs. Plaintiffs failed in the action on the merits. Upon the question of what damages were sustained by defendants by reason of the injunction, Held, that the expenses of the proceeding taken to ascertain and determine the damages sustained by reason of the injunction order are properly allowable.
    2. Same — Expenses for preparation of papers served in action previous to service of injunction order restraining action are allowable.
    Before defendant was advised of any purpose on the part of plaintiff to restrain him by an injunction order, he had caused papers to be made out in an action for the foreclosure of the mortgage in question, and after service of the injunction order had no opportunity to prevent their service. The injunction order had the effect of compelling him to discontinue his action, which he did by plaintiff’s consent. Held, that the expenses so incurred by defendant were properly allowable.
    3. Same — Expenses of unsuccessful motion to dissolve not allowable.
    Defendant is not entitled to expenses incurred on a motion to dissolve the injunction which was without substantial success.
    Appeal from an order of Erie special term, confirming report of referee, determining the damages sustained by the defendants by reason of an injunction order made in the action. The action was brought to require the application of the value of one of two parcels of land upon a mortgage held by the defendant, William F. Wendt, on both parcels. And the plaintiffs obtained an injunction order restraining the defendant from bringing any action upon or attempting to enforce the bond and mortgage against the other parcel and the plaintiffs. The plaintiffs failed in the action on the merits, and in the proceeding to ascertain and determine the damages sustained by the defendant by reason of the injunction, the referee reported that the defendant William F. Wendt had sustained as such damages. 1st. The expense incurred by Mm in preparing papers to commence an action, (and in serving them) to foreclose Ms mortgage, $19 75 His expenses on motion to dissolve the injunction, . 50 00 Interest upon the value of the premises for a certain
    period.7 50
    For the services of Ms attorney and counsel in tMs proceeding . 40 00
    And the other expenses of this proceeding which embraced the referees fee’s. 72 00

      The plaintiffs, and Henry D. Keller, their surety in the undertaking made to obtain the injunction, appeal.

      B. S. Farrington, for applt's; Brundage Chipman, for resp’ts.
   Bradley, J.

The expenses of the proceeding taken to ascertain and determine the damages sustained by reason of an injunction order are properly allowable when there is any occasion to institute it for, that purpose. Rose v. Post, 56 N. Y., 603; Lawton v. Green, 64, N. Y., 331; Newton v. Russell, 87 N. Y., 531.

The item of $ 19.75 was the amount of costs paid by the defendant to his attorney for preparing the papers in his action to foreclose the mortgage served two hours after the summons, complaint, and injunction in this action were served on him, and the expense of making the service.

The defendant caused his papers to be made out and sent to an officer to be served before he was advised of any purpose of the plaintiff to restrain him by injunction, and after the latter was served on him he had .no opportunity, to stay the service of the summons and complaint in his action before they were served. The injunction had the effect to require him to discontinue his action, and he did so.

The consequence was that this expense incurred in good faith was available to him for the purpose for which it was incurred, but that such purpose was defeated by the injunction which he had unintentionally violated. Although there was no order made directing the discontinuance of the defendant’s action, it cannot be said to have been done voluntarily. The plaintiffs had taken proceedings to punish the defendant for contempt, and to require him to discontinue and pay costs; and in the midst of that proceeding, the defendant, with the consent of the plaintiffs, discontinued without costs, by stipulation to that effect.. There was no error in the allowance of those expenses so incurred before the injunction was served, and before the defendant had any notice of the purpose to so restrain his action.

The referee allowed to the defendant f 50 for his expenses incurred for the purposes of, and in a motion made in his behalf to dissolve the injunction. The motion did not- result in dissolution. The injunction was so modified as to permit him to set up in his answer in this action, Ms cause of action-for foreclosure of his mortgage, and ask affirmative relief for that purpose. If his motion to dissolve was without any substantial success, the defendant was entitled to no allowance for the expenses of his motion. Allen v. Brown, 5 Lansing, 511; Randall v. Carpenter, 88 N. Y., 293.

The injunction enjoining the defendants • “ from bringing any action upon, or attempting to enforce his bond and ■ mortgage against one of the parcels embraced within the mortgage and. against the plaintiffs, until the further order of the court. If this had the effect to deny him the right to set up in the answer, and thus seek affirmative relief, there may be some support for the defendant’s contention that his motion affording such right by way of modification of the injunction was not without some substantial advantage. But it is difficult to see how the injunction could be construed to have the effect to restrain the defendant from setting up his mortgage and seeking affirmative relief in this action, as such result would be dependent upon the determination against the plaintiff of the issue tendered by his complaint. The effect which the injunction order had, was to prevent the institution by the defendant of an action to enforce the bond and mortgage, and it did not go beyond that. The defendant therefore took nothing by his motion to dissolve the injunction, and was entitled to no allowance for the expenses of the motion. He was not, however, required to seek affirmative relief by answer in this action. And the injunction may be treated as restraining Him from proceeding to foreclose his mortgage.

After the termination of this action the defendant proceeded to judgment of foreclosure and sale, in an action brought by him for that purpose, and the proceeds of the sale of the mortgage premises were not sufficient to pay the mortgage, but there was a deficiency of over.f800. •

By this.restraint the defendant lost a sum equal to the amount of the interest upon the value of the security furnished by his mortgage during such disability, as his obligor was insolvent. The item of interest we think was properly allowed. Aldrich v. Reynolds, 1 Barb. Ch., 613; Roberts v. White, 73 N. Y., 375.

The order should be modified by deducting fifty dollars from the amount awarded to the defendant, and as so modified, affirmed, without costs of this appeal to either party.

Haight and Angle, JJ., concur;


author: Smith, P. J.

text:
    John Boyer, as Adm’r, etc., Appl’t, v. Henry S. Marshall et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887).
    1. EXECUTORS AND ADMINISTRATORS — ACCOUNTING — PETITION FOR— Waiver of objection that petitioner has no interest.
    Where a person alleging that intestate’s estate was indebted to him presented a petition that the administrators be cited to account and be decreed to pay the debt alleged to be due him. Held, That one of the administrators having instituted proceedings for a judicial settlement of their accounts, and the other having in those proceedings rendered an-account, this petitioner, for aught that appears, having been made a party to those proceedings and no objection having been taken that he was not interested, the objection that he had not an interest in the estate had been waived by the administrators.

      2. Same — Note given by administrator fob claim against estate is a PERSONAL OBLIGATION.
    A note given by an administrator for an alleged claim against the estate of his intestate, though signed by him as administrator, is his personal obligation, It does not bind a co-administrator. Persons dealing with negotiable instruments are presumed to take them on the credit of the parties whose names appear on them.
    3. Same — Claim against estate by — When may be presented.
    An administrator having given his note for a claim against the estate of his intestate, is entitled to have the same allowed to him on his accounting and may bring in the claim as a credit against the amount of assets with which he is chargeable whenever there, is an accounting, although more than six years after the date of the payment.
    4. Same — Testimony of, that payment was made at request of next OF KIN, WHEN COMPETENT.
    Where an administrator makes payments from his intestate’s estate and receives vouchers therefor, his testimony that such payments were made at the request of the next of kin is competent.
    5. Same — Payment of proper claim prior to appointment — Appointment RELATES BACK.
    When a payment made before the appointment of the party making it as administrator is a proper charge against the next of kin, the subsequent appointment relates back and gives it the- same effect as if it had been made after letters granted.
    Appeal from a decree of the surrogate of the county of Cayuga.

      H. A. Maynard, for appl’t; E. O. Aiken, for H. L. Marshall and Theron Marshall, respt’s ; S. B. Mead, for Thomas Miller, resp’t.
   Smith, P. J.

John Marshall died in April, 1872, leaving three sons, Henry S., George and Theron, his only heirs and next of kin. On the 23d of March, 1874, letters of administration upon his estate were granted to John Boyer, the appellant, and the said Henry S. Marshall, one of the respondents. In August, 1885, Thomas Miller; one of the respondents, presented his petition to the surrogate, alleging that the estate of the said deceased was indebted to the petitioner in the sum of forty-seven dollars and thirty cents, the balance of an account alleged to have accrued to him as an undertaker, for furnishing a coffin and taking charge of, and burying the body of the said deceased. The petition also alleged that on the 9th of September, 1879, the said Henry Marshall gave his promissory note to the petitioner for the amount of said account signed by him as administrator, upon which were two endorsements, dated 3rd April, 1880, and 8th February, 1881, respectively, leaving due the balance above stated. The petition prayed that said administrators be cited before the surrogate to render an account of their proceedings, and that they be decreed to pay the petitioner his said debt and interest, with costs. The administrators were duly cited and appeared. Boyer, separately, put in an answer denying his liability, upon several grounds stated in the answer. Marshall did not answer, but be separately presented a petition asking that the accounts of said administrators be judicially settled, and that all persons interested in the estate be cited to attend such settlement. The citation issued upon that petition was addressed to Boyer among others as “ co-administrator,” and was served on him. He appeared and answered denying his liability to account, but he subsequently accounted separately, charging himself with the proceeds of personal property received by him to the amount of $-340.71, and crediting himself the same amount for moneys paid out by him for the estate. The credits included the sum of $72.20, paid for a tax upon the estate of said deceased, and the sum of $128.14, paid for interest upon a mortgage covering the real estate of said deceased. Those items were disputed on the accounting. Boyer produced in evidence a receipt signed by A. E. Tifft, the holder of the mortgage, of which the following is a copy: “ Genoa, April 1,1876. Received . of John Boyer, administrator of John Marshall, deceased, $168.00, interest on mortgage. A. E. Tifft.” He also testified that George and Theron Marshall, and one Hawkins came to him and informed him that the collector had seized a horse which they could not spare and wanted him to pay the tax, and that he did so, advancing his money for the purpose. Aucl he put in evidence a receipt of which the following is a copy: “ Genoa, N. Y., Feb. 1874. Received of John Boyer, $80 tax on John Marshall’s estate for 1873. J. S. Robinson, collector.” The disputed items were disallowed. The claim of Miller was allowed, and ordered to be paid by the administrators, with costs and disbursements to be paid by Henry Marshall personally, and the remainder of the assets, amounting to the sum of $197.46, was ordered to be distributed among the next of kin. Miller was a witness in his own behalf and he testified on cross-examination that he made the arrangements for the funeral with the family; Henry Marshall was one of them.

It is contended by the appellant’s counsel that Miller was neither “a creditor” of the estate nor had he “an interest in the estate or fund ” within the meaning of section 2726 of the Code, and therefore that he had no standing which authorized the proceeding.

It is not material to consider this question.

We think the objection of the petitioner’s want of interest was waived by the action of the administrators. Marshall instituted proceedings for a judicial settlement of their accounts, and Boyer in those proceedings, rendered an account, and in doing so acted voluntarily, for aught that appears. Miller was made a party to those proceedings, and no objection appears to have been taken, even by Boyer, on the ground that he was not interested, until the accounts had been rendered and the proofs closed. In these circumstances, we think the objection tbat Miller had no standing in court, must be deemed to hare been waived by both administrators.

And the question of the status of Miller in respect to the estate is not very material, in view of the fact that his claim is against the next of kin, all of whom are parties to the proceedings for the accounting, and one of whom has recognized the validity of the claim by giving his note therefor, upon which partial payments have been made. The note given by Henry Marshall, although signed by him as administrator, was his individual obligation and did not bind the estate. And that would have been the case, even if he had been the, sole administrator. Taft v. Brewster, 9 J. R., 334; Hills v. Bannister, 8 Cow., 31. Nor did it bind his co-administrator. It did not purport to do so, and it is a familiar rule that persons dealing with negotiable instruments are presumed to take them on the credit of the parties whose names appear upon them. Briggs v. Partridge, 64 N. Y., 357, and cases cited by Andrews, J., p. 363. And Miller testified that he settled with Marshall, and did not ask Boyer to .sign the note. Marshall may therefore be regarded as- having paid, or assumed to pay Miller’s claim by giving his note, and he, being one of those upon whose credit the funeral expenses were incurred, had a claim against the administrators for the .amount so paid, according to the authorities already cited, and .as one of the administrators, he was entitled to have the same .allowed him in the accounting.

This view of the case, disposes of the contention of the appellant that the claim is barred by the statute of limitations. As Marshall was one of the administrators, he was entitled to bring in the claim as a credit against the amount of assets with which he was chargeable, whenever the accounting was had, although more than six years after lie made the payment. Besides the proceeding instituted for the enforcement of the claim, and which, although in the name of Miller, may equitably be regarded as .for the benefit of Marshall, was begun within six years next after the claim of Marshall accrued by the giving of his note.

more serious question arises, upon the disallowance of the items paid by Boyer for tax and interest. The payments were ■established by vouchers, and although there was a discrepancy in amount between the vouchers and the charges, there is no ■question but that both referred to the same transactions, (as' there is no proof of any other of the same nature), and the vouchers exceeded the charges in amount. Boyer claimed that •the payments were made at the request of the next of kin, who, ;as the heirs-at-law, were benefited thereby. The case shows that he so testified, and his testimony in that respect was un- ■ contradicted. The opinion of the surrogate indicates that he ■thought the testimony incompetent under section 2734 of the Code, and he seems to have disregarded it. In that, we think, he was mistaken. The second subdivision of that section, on which, doubtless, the surrogate relied, applies only to a case where no voucher was taken, or if taken, was lost or destroyed. Here, as has be.en said, vouchers were produced and proved.

No other objection to the allowance of these items is suggested in the opinion of the referee, and none occurs to us. It is true the tax was paid before Boyer was appointed administrator, but it being a proper charge against the next of kin, the appointment relates back to it, and gives it the same effect as if it had been made after letters were granted. The fact that George, one of the sons of the intestate, was incapable of acting for himself, and a committee had been appointed for him, does not affect the case, as Boyer himself was the committee, and as such is to be regarded as having requested or assented to the payment of the tax and the interest for the benefit of George.

It is contended by the counsel for Henry Marshall that Boyer has received rents and profits of the real estate, for which he does not account, and therefore he should not be credited with the tax and interest paid. The rents and profits appear to have been received by him as the committee of George, and as such, he is liable to account for them. The tax was paid before he was appointed committee, to save a part of the personal property from sale by the collector, and the interest was paid by Mm not as committee, but at the request of all the next of kin, he and Henry giving their note for it, which was paid by Boyer. He testified that he rented the place on shares, as committee of George, and that out of the rents he paid taxes and George’s debts. This is not disputed, and the only conclusion to be drawn from the whole case is that he is liable to account for the rents as committee and not as administrator.

The charges established by the vouchers should therefore have been allowed to the appellant. The allowance may now be made without sending the case back to the surrogate, as the proof is ample and undisputed. Those items being allowed to the appellant, he has fully accounted, and there is no balance in his hands. So far as the decree requires him to make payment to any one, it should be reversed.

And as the decree has not been appealed from by any other party than Boyer, it should be affirmed so far as it finds a balance in Marshall’s hands of $54.62, and orders him to pay to Miller the sum of $47.61, the balance of Ms claim, being the amount of principal unpaid on said note, and it should be so modified as to require that the sum to be paid by him to Miller for his costs, shall be the balance of assets remaining in Marshall’s hands, to wit, the sum of $6.41, and in all other respects the decree should be reversed. No costs of this appeal are allowed to either party, as there do not appear to be any assets remain.ing, and we see no ground for charging either party personally with costs.

Barker, Haight and Bradley, JJ., concur.

So ordered.


author: Haight, J.

text:
    Eugene B. Palmer, as Administrator, etc., of Alexander H. Foster, deceased, Resp’t, v. N. Y. C. and H. R. R. R. Co. Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25, 1887.
    1. NEGLIGENCE — CONTRIBUTORY NEGLIGENCE — CHARGE TO JURY.
    Ill an action brought to recover damages for the alleged negligent hilling of plaintiff’s intestate while crossing defendant’s road, and also for the value of a horse, wagon and harness destroyed at the same time. Defendant’s counsel requested the court to charge the jury that the fact that the gates were not down was not such an assurance of safety to the intestate as obviated the necessity of his using his eyes and ears to ascertain when the train or engine was approaching, and if, notwithstanding the condition of the gates he might have seen or heard the engine if he had looked or listened and as he did not, the plaintiff cannot recover. The court refused to charge except as already charged and defendant excepted. Held, that the first part of the request correctly stated the rule of law covering the case; but the latter clause took from the jury the question as to whether or no the intestate looked or listened before going upon defendant’s tracks, and was properly refused.
    2. Same — Damages eor death caused by — Extent of — In whose interest ACTION BROUGHT.
    Damages in such an action are for the benefit of the next of kin, and when they are collected must be distributed by the administrator as if they were unbequeathed assets left in his hands (Code Civ. Pro., Jj 1903), and they are to be a fair and just compensationforthepecuniary injuries resulting to the person or persons for whose benefit the action is brought, from the decedent’s death.'
    3. Same — What evidence relevant in computing damages.
    Evidence tending to show the decedent’s probability of life, together with his age, health, condition and ability to earn and increase his capital and benefit his next of kin, his manner of life, etc., is competent on the question of damages.
    4. Same — Error in charge to jury.
    It is erroneous to charge the jury as to the probability of life for the decedent of one related to him-, and that during the life of the lattei" she would, of course, have derived her support from decedent.
    Appeal from the judgment entered upon a verdict at the Genesee circuit, and from an order of tlie Erie special term, denying motion for new trial.

      W. II. Adams, for appl’t; Tyrrell §■ Ballard, for resp’t.
   Haight, J.

ThisNction was brought to recover damages for the alleged negligent killing of plaintiff’s intestate, whilst crossing the defendant’s road upon the highway, and also for the value of a horse, wagon and harness, destroyed at the same time. At the conclusion of the' trial, defendant’s counsel requested the court to charge 'the jury that the fact that the gates were not down, was not snob an assurance of safety to tbe intestate as obviated the necessity of his using his eyes and ears, to ascertain whether the train or the engine was approaching, and if, notwithstanding the condition of the gates, he might have seen or heard the engine if he had looked or listened, and as he did not the plaintiff cannot recover. The court refused to charge except as it had already charged on that subject and the defendant duly excepted. The court, in its charge, had not covered the proposition embraced in the request, so that if the request was proper, it should have been granted.

Undoubtedly the first part of the request correctly stated the rule of law covering the case; but the latter clause, in effect, took from the jury the question as to whether or not the intestate looked or listened before going upon the defendant’s tracks, and was too broad, and for this reason was properly refused.

The defendant’s counsel also requested the court to charge the jury that the only person dependant upon the support of the deceased was one whom he was not legally bound to support and, therefore, there could be no recovery. This was refused and exception taken. The right to recover under the statute does not depend upon the right of support, or upon the deceased’s being legally bound to support. Consequently this request was properly refused.

The' court charged the jury that if the defendant was guilty of negligence, and the deceased was not guilty of contributory negligence, that then the jury should find a verdict for the plaintiff for the value of the horse, harness and buggy, and also for such sum as the evidence establishes, that the deceased would have benefited the persons entitled had he lived; that “ There was no person dependant upon the person of the deceased except the old lady. The other relatives were not shown to have been supported by the deceased in his lifetime, and you see the damages in an action like this are for the support of those people who are relatives within the statute who would have continued to receive support from him in ease he had lived, and therefore in tins case it would appear to be confined to the old lady. She appears to have been about seventy years of age, and that support she would of course have derived from him during his lifetime. It was for that purpose that evidence has been produced for the purpose of showing how long he would have lived in a natural way; and these Northampton tables have been intro-, duced. At the present moment the court will not take up the time of the jury in considering these tables. It is enough to show that they would indicate that the proper fife of Mr. Foster would be about five years. The jury may say: “ there is this old lady, the same rule shows that she would live about the same length of time. What would be a reasonable amount required to contribute to her and her wants provided he had lived.” The defendant’s counsel “ excepted .to that portion of the charge that instructed the jury that the plaintiff was entitled to recover what the old lady was entitled to receive for the length of time of her probability of life of the old lady.”

■ It appeared from the evidence that the deceased was about seventy years of age; that he left him surviving a sister and several nieces, one of whom resided with him, and was about seventy years of age. It was this niece that was called the old lady. Under the Code, the damages recovered are for the benefit of the next of kin, and when they are collected, they must be distributed by the administrator as if they were unbequeathed assets left in his hands. Code, § 1908.

The action therefore could not be maintained for the sole benefit of the old lady, as she is called, for the sister and other nieces of the deceased under the statute would be entitled to their distributive shares. And, again, the damages awarded are to be a fair and just compensation for the pecuniary injuries resulting from the decedent’s death to the person or persons for whose benefit the action is brought. Code, § 1904.

The action was brought for the benefit of the next of kin. The damages awarded must be for the pecuniary injuries resulting to them from the decedent’s death. The -question was not one of support. The deceased was under no legal obligation to support “ the old lady,” his niece. He might have continued to support her and he might not. If he had continued to support her it might have been taken out of the capital of his estate, thus reducing the amount that would be finally distributed among his next of kin. It was undoubtedly competent to give evidence showing the relation of the parties, the manner in which he had lived, the support, etc., that had been furnished by the deceased, together with his age, health and condition, and ability to earn and increase his capital and benefit his next of kin: and then, from this evidence, it would be the duty of the jury to determine what would be a fair and just compensation for the pecuniary injuries resulting from his death. But it is contended that the exception taken to this branch of the charge is not sufficiently explicit. It is true that the matter excepted to is not very clearly expressed, but we think the idea is apparent. That portion of the charge was excepted to that instructed the jury that the plaintiff was entitled to recover Avhat the old lady was entitled to receive for the length of time of her probability of life. ' In other words, the exception was to the instruction that there could be a recovery of that which the old lady was entitled to receive during her probable life. It appeared from the charge of the court that her probable life as shown from the Northampton tables, would be about five years; that Mr. Foster’s would be the same. It further appeared from the charge that she had received her support from him, and that “ That support she would of course have derived from him during his lifetime.” In effect charging that they would each probably live five years, and that Mr. Foster would have supported her during that time had he lived, and that the jury were to determine what would be a reasonable amount required to contribute to her wants during that time. We are consequently inclined to the opinion that the exception was broad enough to cover the erroneous charge in this particular.

Inasmuch as a new trial must be had, we have not thought it advisable to discuss the facts or express any opinion in reference thereto.

Upon the argument the appellant’s counsel requested the court not to consider the legal propositions presented by the charge and the requests to charge; but when questioned by the court he refused to waive these questions, asserting that in case the court refused to grant a new trial upon the motion for nonsuit that then the appellant could present these questions on an appeal to the court of appeals. We cannot acquiesce in or sanction such practice. The question upon which the appellant relies for error should be presented and considered in the general term and not reserved for the court of appeals.

Judgment and order should be reversed and new trial ordered ; costs to abide event.

So ordered.

Bap„kee and Bradley, JJ., concur.

Smith, P. J., taking no part.


text:
    Reuben Brinker, Resp’t, v. Henry B. Loomis, as Ex’r, etc., Appl’t.

      Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)
    Costs — Executobs and administbatobs — When entitled to against— Code Civ. Peo., § 1835, 1836.
    Where a claim duly verified was presented to the executor and was rejected, accompanied with a refusal to refer, the executor never having advertised for the presentation of claims against the estate of the testator. Held, that the plaintiff having recovered a verdict in the action was entitled to costs under Code Civ. Pro., §§ 1835, 1336.
    As appeal from an order of the Chautauqua county special term allowing costs to be taxed in the plaintiff’s favor against the defendant as executor of the last will and testament of Lester Crane, deceased.

      Sessions Palmer, for the appl’t; Bootey, Fowler Weeks, for the resp’t.
   Barker, J.

The executor advertised for the presentation of claims against the estate of the testator. The plaintiff did present his claim, duly verified, to the executor, in April, 1884, who rejected the same and refused to refer as provided by statute-Thereafter this action was commenced and the plaintiff recovered a verdict for $232.55, and upon these facts the special term awarded costs against the defendant as executor. The application for costs was resisted upon the sole ground that a case was not made for their allowance within the provision of sections 1835 and 1836, of the Code.

As the claim was not presented “ within the time limited by a notice published as prescribed by law, requiring creditors to present their claims,” as provided by those sections, the case of Field v. Field, 77 N. Y., 294, is in point and sustains the ruling of the special term, allowing costs to the plaintiff. In that case, as in this, the claim was presented to the executor for allowance before the publication of any notice, and the same was rejected, accompanied with a refusal to refer. After such dis-allowance the executor did publish a notice and the claim was not represented by the claimant within the time limited by a notice published as then prescribed by law. The last circumstance does not exist in the case now here. It was held in that case, that the plaintiff having recovered a verdict on his claim was entitled to costs; that a claim may be presented to the executor at any time after he has duly qualified, and that there is nothing in the statute requiring that such presentation shall be made and followed by a refusal to refer, during the publication of the notice to creditors, to entitle the plaintiff to costs in case he succeeds in an action based thereon. The notice is for the protection of the executors, and the estates which they represent, and there is no absolute obligation to give it at all. In that case, the question arose and was decided before the Code went into effect. But we think the sections of the Code contain nothing new on the subject, and that the provisions of the Revised Statutes were simply brought forward and re-enacted, and that sections 1835 and 1836, should receive the same construction as was given to the former statute, in Field v. Field, supra. In 2 R. S., § 41, 3rd ed., p. 153, there is a negative provision that no costs shall be recovered in any suit against an executor or administrator, unless it appear that the demand on which the suit was founded was presented within the time fixed by a notice published as prescribed by law. In sections 1835 and 1836, is found a like negative proviso that costs shall not be awarded against an executor except when it appears that the plaintiff’s demand was presented within a time fixed by a notice as prescribed by law. The language of the old and the new statute is essentially the same, and relates to the same subject-matter.

The claim having been duly presented and the executor refusing to refer, the plaintiff was entitled to costs as a matter of .course. Snyder v. Snyder, 26 Hun, 324.

Order affirmed with $10 costs and disbursements.

All concur.


text:
    Yates County National Bank of Penn Yan v. Mason L. Baldwin, impl’d, etc., Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1887.)
    MORTGAGE — ASSIGNMENT — WHEN FOR -VALUE.
    A bank claimed title to a certain mortgage on real estate and the bond to which it was collateral under an assignment executed by the mortgagee W., dated May 17th, 1SS4, and recorded June 21st, 1884. And one B. claimed title to said bond and mortgage by virtue of an assignment executed to him by the said W. on October 1st, 1S83, and recorded June 11th, 18S4, to secure the payment of a certain note. While B. held the bond and mortgage he agreed with W. that he might negotiate a sale of them, and out of the avails pay to B. the amount of the note secured by the assignment, and on one or more occasions B. delivered the bond and mortgage to W. for that purpose; they were not sold or negotiated at such times, but on each occasion they were returned by W. to B. Afterwards B., at W.’s request allowed him to take them to get sonje dates, or for some purpose of W.’s, other than to sell them or negotiate their sale. On the latter occasion while W. had them in his possession, without the knowledge or consent of B., he sold and delivered them to the said bank. The consideration in part for the transfer of the bond and mortgage to the Bank was the application of a certain sum to a pre-existing debt held by the bank against W. Held, that the bank, to that extent, was not a purchaser for value as against B
    2. Same — When a pledgee does not part with possession of property PLEDGED.

      Held, that B. having delivered the bond and mortgage to W., the pledger, for a temporary purpose, did not impair his own title or possession. That W.’s authority to dispose of them had ceased when he returned the securities.
    3. Same — Recording — Pp.om what time notice.

      Held, that any payments made by the bank on or after June 11th, 1884, (the date of recording the assignment), to W., were with constructive notice of the assignment to B., and of B’s rights.
    4. Same — Effect of defective assignment — Presumption.
    Where the assignment of the mortgage did not mention the bond, the presumption is that the bond was assigned also. And the recording of such an assignment is notice that everything essential has been done, nothing appearing in the assignment to the contrary.
    Appeal from a judgment entered on the report of a referee.

      M. A. Leary, for appl’t; W. T. Morris, for resp’t.
   Smith, P. J.

Action to foreclose a real estate mortgage executed bySarah E. Lynn to Ralph T. Wood, to secure payment of the sum of seventeen hundred dollars. The plaintiff claims title to the mortgage, and the bond to which it is collateral under an assignment executed by Wood to the plaintiff, dated the 17th day of May, 1884, and recorded on the 21st day of June, 1884. The appellant, Baldwin, claims to be entitled to the bond and mortgage, or to the proceeds arising from a foreclosure and sale of the mortgaged premises, to the extent of one thousand dollars and interest, from the first day of October, 1883, by virtue of an assignment executed to him by Wood on the day last named, and recorded on the 11th day of June, 1884. The transaction between Wood and Baldwin, as found by tbe referee, was substantially as follows: On or about tbe first of October, 1883, Wood, for tbe purpose of securing tbe payment of a promissory note of one thousand dollars, endorsed by him to Baldwin, agreed witb Baldwin to sell and assign to liim tbe said bond and mortgage, and thereupon Wood executed and delivered to Baldwin an assignment of said mortgage in writing, and at the same time delivered to him tbe bond and mortgage witb the assignment, and thereafter and until about tbe time of the assignment of tbe bond and mortgage to tbe plaintiff, Baldwin held them as collateral security for tbe payment of said note, in accordance witb tbe terms of tbe assignment to him.

Although tbe assignment to the plaintiff is junior in date and registry to that of the appellant, the plaintiff claims preference upon the ground that it purchased the bond and mortgage in good faith, and for a valuable consideration paid to Wood without notice of tbe assignment to tbe defendant, and upon that ground the referee is understood to have reported in tbe plaintiff’s favor. Is that claim established ? First, as to tbe consideration. Tbe facts bearing upon that point are as follows: The referee found that the sale to the plaintiff was on the 17th of May, 1884, the plaintiff then agreeing to pay Wood $1,715.86 for the bond and mortgage. On the 26th of May, 1884, in pursuance of such agreement, the plaintiff gave Wood credit for that sum upon its books, as a depositor. Wood was at that time a customer of the plaintiff, and said credit was also entered upon his pass-book. At the time of the sale and transfer, Wood was indebted upon promissory notes held by the plaintiff in an amount exceeding the sum agreed to be paid by the plaintiff for the bond and mortgage, but none of said notes were due at the time said credit was given, and no agreement was then made between Wood and the plaintiff that said credit or any part of it, should be applied to the payment of said notes. The referee also found that on and after said 26th of May, and prior to said 11th of June, the date of the registry of the defendant’s assignment, Wood drew from the bank upon his checks an amount exceeding the credit given him for the bond and mortgage, but the fact is also found upon the admission of the plaintiff made at the trial, that of said credit of $1,715.86, the sum of $921.41 was paid by the plaintiff upon checks drawn by Wood upon the plaintiff to pay and apply upon two notes owned by the plaintiff, upon which Wood was maker or endorser, both of which notes were made and delivered to the plaintiff, for value, prior to the transfer to the plaintiff of said bond and mortgage. From these facts, about which there is no dispute', it seems to follow, that to the amount of $921.41, the only consideration for the transfer of the bond and mortgage to the plaintiff was the application of that sum to the pre-existing debt held by the bank against Wood, and to that extent the plaintiff was not a purchaser for value, as against the appellant. On that ground alone, the plaintiff’s claim fails, and the appellant is entitled to priority, to the amount last above mentioned.

But we regard the plaintiff’s claim defective, also, in respect to notice. Baldwin’s assignment was recorded on the 11th of June. The referee found, upon the plaintiff’s admission, that Wood’s two notes above mentioned, held by the bank, became due June 9th and 18th, respectively. There is no finding as to the amount of either of said notes separately, or as to how much of said sum of $921.-11, was paid at either of the dates above mentioned. It appears in evidence, however, by a statement furnished by the plaintiff, purporting to show the condition of Wood’s account in the plaintiff’s bank, that on the 11th of June, Wood had a balance in the bank to his credit of $887.89, and that the only charges made against him, prior to and including the 18th of June, were $25 on the 12th, and $1S5.G0 on the 18th. This evidence, furnished by the plaintiff, and in no way contradicted, seems to show conclusively that of the sum of $921.41 above mentioned, at least $887.89 was not paid until the 11th of June. So that, unless the recording of the defendant’s assignment failed for some reason to operate as constructive notice to the plaintiff of the defendant’s rights in respect to the mortgage, the plaintiff’s payments made on and after that date, were with notice.

The plaintiff’s counsel contends that the record is not notice, inasmuch as the recorded assignment is of the mortgage alone, and does not convey the bond. Doubtless, if the mortgage alone had been assigned, the assignment would have been a nullity, inasmuch as the mortgage was but an incident to the bond, and could not be separated from it. The cases cited by the plaintiff’s counsel, in which that doctrine has been held, were cases in which there was no assignment of the bond, in fact, nor was it intended that the bond should accompany the mortgage. Cooper v. Newland, 17 Abb., 342; Merritt v. Bartholick, 47 Barb., 253; S. C. aff’d, 36 N. Y., 44. Here, the bond was in fact transferred with the mortgage, although not mentioned in the written assignment. It was the intent of both parties that it should pass, and it was actually delivered with the mortgage and the assignment. The assignment of the mortgage, was therefore not a nullity, as in the cases cited, but was valid. Foster v. Van Reed, 70 N. Y., 19, 27, and the registry was notice of the fact, and instead of its authorizing the presumption that the bond had not been transferred, it was notice that everything essential to constitute an assignment of the mortgage had been done, nothing appearing in the assignment to the contrary. It was enough, at least, to put the plaintiff on inquiry as to the real transaction, and to charge it with notice of that to which reasonably diligent inquiry would have led. The case of Thomson v. Wilcox, 7 Lans., 376, cited in behalf of the plaintiff, does not apply. There, a city lot intended to be mortgaged was described correctly by its street number, but the description, by metes and bounds, was of an adjoining, lot. Held, that the mortgage was constructive notice of a lien upon the latter lot only, as the description by metes and bounds was controlling. There were two inconsistent descriptions, only one of which could be true. Here, the assignment of the mortgage was not only consistent with the transfer of the bond, but without the latter, the former was of no avail.'

It is contended by the plaintiff’s counsel that the assignment of the bond and mortgage to Baldwin was a pledge, and that Baldwin lost his lien by parting with the possession. That the transaction was a pledge to secure the payment of the fl,000 note is probably true. The facts in regard to Baldwin’s parting with the possession, as found by the referee; are in substance, as follows: While Baldwin held the bond and mortgage he agreed with Wood that he might negotiate a sale of them and out of the avails pay to Baldwin the amount of the note secured by the assignment, and on one or more occasions Baldwin delivered the bond, and mortgage to Wood for that purpose; they were not sold or negotiated at such times, but on each occasion were returned by Wood to Baldwin. Afterwards, Baldwin, at Wood’s request, allowed him to take the bond and mortgage to get some dates, or for some purpose of Wood’s other than to sell them or negotiate their sale, and to be returned to Baldwin Avhen Wood should have used them for such purpose. It was on the latter occasion, while Wood had the bond and mortgage in his possession, that, without the knowledge or consent of Baldwin, he sold and delivered them to the plaintiff. Upon this state of facts, we think it cannot be held that Baldwin parted with the possession. On each occasion the possession of Wood was Baldwin’s possession, Wood having them in his hands merely as the agent of the pledgee. In White v. Platt, 5 Den., 269, securities for money were transferred as collateral security for a debt of the party transferring them, and although the creditor afterwards redelivered them to the debtor to collect and secure them as against the parties indebted in the securities, it was held that he still retained his special property. In Hays v. Riddle, 1 Sandf. 248, it was held that when the pledgee of a bond delivers it to the pledger for a particular purpose, as to be exchanged for stock, and to return the latter, and the pledger converts the bond to his own use, the pledger may maintain trover; and that the delivery of a pledge to the pledger for a temporary purpose, as agent or special bailee for the pledgee, does not impair the title or possession of the latter. Hays v. Riddle, was an action against the pledgee, but tire rule is the same against one deriving title from the pledgee, not a purchaser for value and in good faith. (Story on Agency, § 299; Macomber v. Parker, 14 Pick., 497. See also Macauley v. Hopkins, 35 Hun, 556, and Parshall v. Eggert, 54 N. Y., 18.)

It is true that if Wood had sold the bond and mortgage, or negotiated théir sale, to a purchaser in good faith and for value, on either occasion when he held them for that purpose, with the consent of Baldwin, the title would have passed, and the pledge would have attached to the avails in his hands, but the referee has -found that he did not so dispose of them on either of those occasions. The authority to so dispose of them ceased when he returned the securities. And the referee has found that at the time when he assumed to sell the bond and mortgage to the plaintiff, he had possession of them for some purpose other than to sell or negotiate them, with the understanding that they were to be returned to Baldwin when such purpose ivas accomplished. These findings are warranted by the evidence, and in the face of them it can not be held that the transfer to the plaintiff was in pursuance of the authority to sell, given on the previous occasions.

The result is, that the appellant has priority to the extent of the sum of $921.41, with interest from the 11th of June, 1884. If the plaintiff stipulates within twenty days to modify the judgment so as to award to the appellant a preference to the extent of that sum out of the avails of the foreclosure sale, or a first lien upon the bond and mortgage to that extent, unless a sale be had, and to strike out the award of costs against Baldwin, and to insert in lieu thereof costs of the defence to said Baldwin against the plaintiff, with costs of this appeal, the judgment as so modified is affirmed; otherwise the judgment as against the appellant is reversed, and a new trial of the issues between him and the plaintiff is ordered before another referee, costs of this appeal to abide the event.

Bahkeb, Haight and Bradley, JJ., concur.

So ordered.


author: Childs, J.

text:
    Maggie A. Beckwith, Resp’t, v. LeRoy Oatman, Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 25, 1887.)
    1. NEGLIGENCE — DBUGGIST — PROFESSIONAL SKILL — FAILURE TO EXERCISE PROPER CARE.
    A druggist undertakes, when he assumes to fill a prescription, that he possesses the ordinary skill of a druggist, and that he will exercise due and proper care and skill in putting up the medicine required. The degree of care required being proportionate to the gravity of the injury that would naturally result from a want of cave. The failure to exercise such due and proper care is the ground, and the only ground, of an action for negligence.
    2. Same — Negligence, must be shown.
    The case was given to the jury (by the judge’s charge), solely upon the question whether or not the prescription in question had been correctly put up, and they were told that if the same was not correctly put up the plaintiff, if injured by taking said medicine as compounded, was entitled to .recover. By the charge the question of want of skill or negligence of the defendant’s clerk, upon which the plaintiff’s right to recover wholly depends, was taken away from the jury. Held, error, that actual negligence is a necessary element in the liability where a mistake has occurred.
    3. Same — Pleading — Complaint must AVER negligence.
    In an action against a druggist for wrongly putting up a prescription, negligence or want of skill on his part must be alleged in the complaint and proved on the trial.
    Appeal from a judgment entered upon tbe verdict of a jury at Erie county circuit.
    The complaint alleges tbat tbe defendant is a druggist, selling drugs and medicines at Angola, Erie county, N. Y. Tbat tbe defendant by bis agent and clerk, having charge of his drug store, was requested by plaintiff through her husband, to compound a certain prescription of medicine made for her by one William Danforth, M. D.; that defendant by his clerk in charge of said drug store, undertook to put up said prescription; that, in fact, other drugs and medicines were compounded and put up for plaintiff by defendant, materially differing from those which plaintiff applied for.
    In the next count it is alleged that the medicine thus compounded by defendant did not cure plaintiff of the bronchitis of which she was then suffering, and for which medicine was prescribed by said physician, and did not help said disease of bronchitis, but that said drugs and medicines did plaintiff great bodily harm, etc., to the damage of plaintiff of $5,000.
    In the next and last count it is alleged that if the drugs and medicines prescribed had heen given and sold to the plaintiff, the plaintiff’s health would have been benefited thereby, and that by reason of their being other and different and dangerous, harmful and poisonous drugs and medicines, the plaintiff was injured as aforesaid in the sum of $5,000.
    The answer admits that a prescription made by Dr. Danforth, was compounded by defendant’s clerk at the time alleged in the complaint, and denies the remaining allegations of the complaint.
    The issue thus joined was tried at the Erie circuit in April, 1884, the plaintiff had a verdict for $500, and from the judgment entered on such verdict, this appeal was taken.

      George W. Osgoodby, for resp’t; Sprague, Morey Sprague, for appl’t.
   Childs, J.

No motion for a new trial having been made by tbe defendant, either upon the minutes of the judge, or at special term, the exceptions taken by the defendant on the trial present the only questions for review on this appeal.

At tbe close of tbe plaintiff’s case, defendant moved for a non-suit upon the following grounds:

1st. That no cause of action has been made out against tbe defendant.

2nd. There can be no recovery for negligence, because no cause of action for negligence is set forth in the complaint.

3rd. That no cause of action for breach of contract is made out by the evidence.

This motion was denied and defendant excepted.

Again at the close of the evidence the motion for nonsuit was renewed upon the same grounds; was again denied and defendant excepted.

These exceptions, with others, to the charge of the judge as made and to his refusal to charge as requested, which will be stated and considered later, present the main question for review.

The right of plaintiff to recover in this action, rested upon and had its foundation in the rule of liability established in the case of the entire class of professional persons, whose work or employment requires special knowledge or skill, under that rule the defendant undertook, when he assumed to fill the prescription for plaintiff, that he possessed the ordinary skill of a druggist or apothecary, and that he ivould exercise due and proper care, and skill in putting up the medicine required. Bellinger v. Craique, 31 Barb., 534; Carpenter v. Blake, 50 N. Y., 696. Cowen’s Treatise (7th ed.), 290. The degree of care required being-proportionate to the gravity of the injury that would naturally result from a want of care, and the failure to exercise such due and proper care is the ground of an action of negligence, and the only ground upon which plaintiff sought to or could recover in this action. Thomas v. Winchester, 6 N. Y., 397; Brown v. Marshall, 47 Mich., 576; Norton v. Sewall, 106 Mass., 143; Losee v. Buchanan, 51 N. Y., 476, 488; Morriss v. Blatt, 32 Conn., 75. 4, Wait’s Actions and Defenses, 683.

The respondent acquiesces in the rule of liability, as above stated, and Concedes that his right to recover must be made to depend on the negligence of the defendant. It ivas, therefore, incumbent on the plaintiff to allege, and to prove on the trial, such want of skill on the part of defendant’s clerk, or such negligence on his part, in filling the prescription, as would bring the defendant within the rule and make him liable for negligence in respect to that transaction. The complaint contains no allegation of negligence, and no testimony was given by the plaintiff tending to prove negligence other than such as was given to show that the prescription had not been properly filled or put up by defendant’s clerk. This question was raised for the first time by defendant’s motion for a nonsuit, it is one presenting some difficulty, but as we have concluded to grant a new trial upon another ground, it does not become necessary to hold that for the insufficiency of the complaint, the motion should have been granted.

At the close of the case, the judge charged the jury among other things, as follows :

“ This action is brought by the plaintiff against the defendant as proprietor of a drug store in Angola, upon the charge that a prescription drawn for her by her physician, was wrongly compounded. As a consequence of that the medicine proved to be injurious to her health, so far as the plaintiff’s caséis concerned; there is no direct evidence given by her as to the fact of this compound not having been according to the doctor’s prescription. Witnesses have been placed upon the stand for the purpose of establishing that to be a fact. And if it is the fact, if the evidence establishes it to your satisfaction, then the defendant in that case would be liable,” and again, “ The controversy relates to the allegation whether it was compounded in a manner in which the prescription required it to be done, if it was, then the plaintiff cannot recover. If, as urged in her behalf, that it was not so compounded, but that the compound was made different, and to such an extent, and in such a degree as to render it dangerous to be taken by her, and she suffered injury in consequence of it, then the action would be maintained, and she would be entitled to a verdict against the defendant.”

And again, “ If you are satisfied this medicine was not properly compounded, and in consequence of that this injury was sustained, she is entitled to recover.” To each of these propositions the defendant excepted and requested the court to charge the jury “ That the plaintiff could not recover if the defendant’s clerk exercised proper care in putting up the prescription, al- ■ though there might have been a mistake in doing it.”

This reqnest to charge was refused and the defendant excepted.

It will be observed that the case was given to the jury solely upon the question: Whether or not the prescription had been correctly put up; and they were told that if the saffie was not correctly put up, the plaintiff, if injured thereby, was entitled to recover. The question of the want of skill or negligence of the defendant’s clerk, upon which the plaintiff’s right to recover wholly depended, was taken from the jury by the court, and they were in effect instructed that it was immaterial if a mistake was made, whether it occurred by reason of the want of skill, or negligence of defendant’s clerk, or otherwise.

The case of Brown v. Marshall, 47 Mich., 576, is in point. In that case the trial judge charged as follows :

“ It is the duty of druggists to know the properties of the medicines which they sell, and to employ such persons as are capable of discriminating and dealing out according to prescription; and if the defendant's clerk in this case sold and delivered to plaintiff a poison instead of a harmless drug, and the plaintiff took it, supposing it to be harmless, and was thereby caused suffering and a serious injury, the defendant is liable for the damages so caused, in this suit.”

Cooley, J., giving the opinion of the court (p. 582), remarks upon this instruction as follows: “ In this instruction there is no hint of negligence as a necessary element in the right of action. The duty is correctly stated, and it is assumed that a right of action will arise from a failure to perform it, irrespective of the reasons. If the judge is wrong in this, the judgment cannot stand, for though there are other instructions which seem to be inconsistent with this, we cannot know that the jury did not shape their opinion by this rather than by any other. The question, then, is, whether the delivery at a drug store of a deleterious drug to one who calls for one that is harmless, and a damage resulting therefrom, will not merely tend to make out a right of action, but whether this gives a right of action, even though there might have been no intentional wrong, and the jury may believe there is no negligence. That such ’an error might occur without fault on the part of the druggist or his clerks is readily supposable. He may have bought his drugs from a reputable dealer, in whose warehouse they may have been tampered with for a purpose of mischief. It is easy to suggest accident after they come to his own possession, or wrongs by others of which he would be ignorant, and against which a high degree of care would not give perfect protection. But how the misfortune occurs is unimportant, if, under all circumstances, the fact of occurrence is attributable to him as a legal fault. The case, it must be conceded, is one in which a high degree of care may justly be required. 'People trust not merely their health, but their lives to the knowledge, care and prudence of druggists, and in many cases a slight want of care is liable to prove fatal to some one. It is therefore proper and reasonable that the care required shall be proportionate to the danger involved.

But we do not find that the authorities have gone so far as to dispense with actual negligence as a necessary element in the liability when a mistake has occurred, and upon this ground alone the judgment upon the verdict in favor of the plaintiff was in that case reversed.

In Carpenter v. Blake, 50 N. Y., 696, which was an action against a surgeon for malpractice, it was claimed by the plaintiff that the dislocation was never reduced, and by the defendant that the dislocation was properly reduced and the joint remained in its place until the defendant was discharged from the case. Evidence was given tending to show that defendant was reputed to be and was a skillful surgeon. The court charged in substance that it was immaterial to the inquiry whether defendant, at tbe time be undertook the reduction of the dislocation, was or was not reputed to be, or was or was not a skillful surgeon. ' This was held to be error for which the judgment was reversed.

In the case at bar the defendant gave testimony tending to show that no mistake was made by his clerk in putting up the prescription, and insisted upon that fact in his defense. Testimony was also given as to the qualification and length of service in the drug business, of Penfold, his clerk; also detailing all the acts of Penfold in preparing and delivering the medicines, the length of time the preparation used by him' had been in the store, and from whom the same was procured. We are of the opinion that under the proofs the defendant was entitled to have the question as to the competency of his clerk, and the ■exercise of due and proper care on his part, submitted to the jury, and that the exceptions to the charge as made, and to • the refusal to charge as requested were well taken and point out error which requires a reversal of the judgment.

It is to be observed that the case was not tried by the defendant upon the assumption.that the complaint alleged a cause of action, or that his. rights should be determined upon the theory on which the case was given to the jury, but at the earliest opportunity he raised the question presented on this appeal, and again at the close of the charge requested that the jury should be instructed in accordance with his claim as now insisted upon.

As these views lead to a new trial we have not examined the numerous exceptions taken to the rulings of the court in admitting testimony offered by the plaintiff.

The judgment should be reversed and a new trial granted, -with costs to abide the event.

All concur.

dgment reversed and new trial granted.