author: Haight, J. Dwight, P. J. (dissenting)

text:
    James Baldwin, App'lt, v. Isaac June et al., Resp'ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    Fbaudulent conveyance—When gbantee entitled to be secured.
    Defendant conveyed to his wife a house owned by him in consideration of a conveyance to him of another house and an indebtedness for borrowed money which he owed his wife. In making the transfer false values were placed on the two houses, and it was found that the defendant consented to receive such consideration for the purpose of defrauding his creditors out of .the amount by which the value of his house exceeded the consideration paid, and that the wife was aware of such intent. Held, that the refusal to reimburse a fraudulent grantee is not for the purpose of punishing him, but to preserve the rights of creditors to the extent that they would have been had th,e conveyance not been made; and that as the creditor had the benefit of the house conveyed by the wife to defendant, it was proper, on declaring her deed fraudulent, to direct it to stand as security for the value of the house conveyed by her, but that she was not entitled to security for the indebtedness of her husband, as it was an antecedent debt.
    (Dwight, F. J., dissents.)
    Appeal from a judgment entered upon a decision of the Steuben equity term.
    The plaintiff, as a judgment creditor of Isaac June, brought this action to set aside as fraudulent a deed from the defendant, Isaac June, to the defendant, Lueretia C. June, his wife, dated December 19, 1887, conveying a house and lot in the village of Addison, Steuben county, known as the Tuscarora street house. On the same day the defendant, Lueretia, in consideration therefor conveyed to the defendant, Isaac, a house and lot known as the Hollis house. In making the trade, they valued the Tuscarora street lot at $3,000, and the Hollis lot at $2,000. The balance was made up by cancelling an indebtedness for borrowed money, etc., which Isaac was owing to Lueretia.
    The trial court found as facts that the value of the Tuscarora street place was $3,500, and of the Hollis place but $1,500 ; that the consideration paid by the defendant, Lueretia, for the Tuscarora street place was inadequate and unfair, and that the defendant, Isaac, “ consented to receive said consideration for the purpose of defrauding his creditors out of the amount which the value of the Tuscarora street house exceeded the consideration which was paid therefor," and that Lueretia was aware of such intent. Judgment was awarded setting aside the conveyance of the Tuscarora street house, but retaining it as a security to the defendant, Lueretia, for the value of the Hollis lot, and for the money owing her by her husband.

      D. M. Darrin, for app'lt; A. S. Kendall, for resp'ts.
   Haight, J.

This appeal comes here on exceptions taken to the conclusions of law. The evidence is not returned, and we must, therefore, assume that it fully sustains the findings of fact. The appellant, by bringing up the record without the evidence, accepts the findings of fact as correct, but he contends that under the facts as found, the conveyance to Lueretia should have been absolutely set aside, and not retained as a security for any sum whatever.

It is true, as we have seen, that the court ‘has found that the defendant, Lueretia, was- aware of the fraudulent intent of her husband in making the conveyance. This makes her a party to the fraud, and she must submit to such a judgment as the plaintiff is entitled to. The plaintiff, as a judgment creditor of the defendant, Isaac, had a right to have the value of the Tuscarora street house applied upon his judgment. In awarding judgment it was the duty of the court to see that this is fully done and the plaintiff protected to the same extent that he would have been had the conveyance not been made.

The trial court has found as a fact, as we have seen, that the defendant, Isaac, made the conveyance of the Tuscarora street house, and received a consideration therefor “ for the purpose of defrauding his creditors out of the amount which the value of the Tusearora street house exceeded the consideration which was paid therefor.” Under this finding the plaintiff was defrauded only to the extent of the difference between the value of the two places. It must be assumed that the evidence supports this finding. To sustain it, it must have appeared that the plaintiff’s judgment had become a lien upon the Hollis house and lot and that it had been, or he was entitled to have it sold and the value thereof applied upon his judgment; otherwise he would have been prejudiced by the fraudulent conveyance to the extent of the value of the Tusearora street place, instead of the difference in the value of the two places. Under this finding he is fully protected by a judgment which preserves the deed of the defendant, Lucretia, as a security for the value of the Hollis lot; for on a sale of that lot he would obtain the value thereof to apply upon his judgment, and by a sale of the Tusearora street house the amount thereof less the value of the Hollis lot to also apply upon his judgment, thus preserving all of the lights which he would have had had not either conveyance been made. Hamilton National Bank v. Halstead, 134 N. Y., 520; 47 St. Rep., 626.

I am aware that it has frequently been held that payments made by a fraudulent vendee upon the purchase of property cannot recover the same back or have the same allowed to him in a judgment setting aside a conveyance which was fraudulent; that he being a guilty participant in the fraud was entitled to no relief from the court; but these decisions are founded upon the theory that the rights of the creditors would be impaired by the allowance of such payments.

In the case of the Hamilton National Bank v. Halstead, supra, Parker, J., in delivering the opinion of the court, says: “If A. convey to B. his farm worth $5,000 with intent to defraud his creditors, B. paying him $1,000 at the time of the delivery of the deed, the court, in the decree setting aside the conveyance, will refuse to grant him relief, “ not as a proper punishment for the offense, but because the creditors have an equity equal to the value of the property granted, which should be fully protected against him who fraudulently sought to despoil it. But for the conveyance the entire property would have been applicable to the payment of the creditors. By the fraud it was put beyond the reach of an execution. Because of it a court of equity declares the deed void. And to the request of B. that he be allowed the $1,000 paid to his fraudulent grantor, a court of equity refuses to listen, because the equity of the creditors embraces the whole of the property, including necessarily the interest represented by the $1,000 paid to A., and it cannot be cut down or interfered with by any payment constituting a part of the fraudulent transaction. But for the misconduct of B. the creditors presumably could have reached the entire interest; therefore, the result of it must be borne by him and not by the innocent party. ”

The refusal to reimburse for moneys paid in such a case is not for the purpose of punishing a party because of his wrong doing, but is for the purpose of preserving the rights of the creditors to the extent that they would have been had the conveyance not been made.

In the case of Loos v. Wilkinson, 113 N. Y., 485; 23 St Rep., 282, the action was to set aside a conveyance of real estate made by a judgment debtor in fraud of the rights of creditors. In that case the grantee was a guilty participant in the fraud, and it was so adjudged, yet it was held he should be protected for payments' made by him to an amount exceeding $20,000, for interest, taxes, repairs, fees of agents, etc. In that case the grantee had been ordered to account for rents received by him.

Earl, J., in delivering the opinion of the court, says: “And what does such an accounting mean ? Does it mean that he shall pay for more rent than he has received or could have received• for move profits than he has made, or could have made ? Shall he account to the creditors for more rents than they could have received if they had had possession of the real estate? If the grant be of a waste piece of land which the grantee has improved so as to make rent possible, shall he account for gross rents without any allowance for his improvements ? If the fraudulent conveyance be of a vessel, unseaworthy, and the vendee makes her, by repairs, seaworthy, and then charters her, shall he be required to account for the gross charter money ? ' Or, in the cases above cited, where the fraudulent vendee of slaves was compelled to account for their hire, would an allowance for their maintenance, while they were working for hire, have been denied ? To answer these queries in the affirmative would, even in a court of equity, be a, wide departure from the rule of compensation. It would be spoliation, not justice or equity. A court of equity does not sit for punishment of criminals. If a fraudulent grantee has violated the criminal law, he may be prosecuted and punished in the criminal courts. While such a grantee will not be allowed for permanent improvements made upon the granted property to suit his fancy, or simply to promote his supposed interests; when the creditors of the grantor come into a court of equity, seeking to compel him to account for rents and profits, the accounting must be upon equitable principles; and when he has been compelled to surrender the property conveyed to him, and to account for all the profits he has made, or could have made, or ought to have made therefrom, the ends of justice have been completely and exactly attained.”

It is said that the defendant Lucretia does not come into court with clean hands ; that she knew of the fraudulent intent of her husband. She does not come into court; she is brought in as a defendant, and the plaintiff is asking a judgment against her. The question is, what judgment is he entitled to? As we have shown, he is entitled to be made good for all that he lost by the fraudulent conveyance, fully that and nothing more. It is not his privilege, or that of this court, to punish her, or enforce forfeitures against her, only in so far as to preserve the rights of the plaintiff as they existed prior to the conveyance in question. The lien of the'plaintiff’s judgments immediately attached to the lands conveyed by her to her husband. It was not a payment to him in money that he could pocket or secrete, so as to keep it from his creditors, but was a payment in real property which the plaintiff could sell and apply the proceeds upon his judgments.

The provision in the judgment in reference to the money owing her by her husband stands upon a different footing-; it was an antecedent debt. Whilst I do not question the right of a diligent creditor to secure the amount of his claim by judgment, deed or mortgage, he must, however, not be guilty of wrong doing in procuring the same. If he procures the conveyance of the property for his antecedent indebtedness he must allow fair value therefor, and nor unnecessarily prejudice the rights of other creditors. He cannot join with the grantor in a scheme to defraud them and still be protected to the amount of his indebtedness. Stevens v. Brennan, 79 N. Y., 254.

In this particular I think the judgment is wrong. The defendant Lucretia should be permitted to hold the deed upon the Tuscarora street house as a security for the sum of fifteen hundred dollars, the value of her Hollis house and lot, and not for the amount of the antecedent indebtedness owing from her husband to her.

The defendant Lucretia has the possession of the Tuscarora street house until the same is sold, and, therefore, has the benefit of the rents, issues and profits thereof. She should not, therefore, have interest on the fifteen hundred dollars.

The judgment should be modified accordingly, and as modified affirmed, without costs of this appeal to either party.

Lewis and Macomber, JJ., concur.

Dwight, P. J. (dissenting)

The action was in the nature of a creditor’s bill, to set aside a deed of a house and lot in the village of Addison, in Steuben county, made by the defendant Isaac to the defendant Lucretia, his wife, as being in fraud of creditors. The appeal is on the judgment record alone, the appellant relying for the facts of the case upon the findings of fact made by the court, and his contention being that those findings are not only inconsistent with the conclusions of law and the directions for j udgment, but that they entitle the plaintiff to the judgment asked for in this complaint.

After the formal findings of indebtedness and insolvency of the defendant Isaac June, the recovery of several judgments against him bv the plaintiff, the return of executions thereon unsatisfied, and the relationship of the defendants, the court finds that the transfer assailed was made in the exchange of property between the judgment debtor and his wife; that the house and lot, known as the Tuscorora street house, conveyed by the former to the latter was of the value of about $3,500, and the property conveyed by the wife to the husband, known as the Hollis house, was of the value of about $1,500; whereas the exchange was made at a valuation agreed upon between the parties, of the Tuscarora street property at $3,000, and the Hollis property at $2,000, the difference between those valuations being made up to the husband by crediting to him an alleged indebtedness from him to his wife, of a like amount, for money loaned, goods sold, and money had and received. The court found that the amount of such indebtedness did not precisely appear, and the reference was ordered to ascertain the same.

But the court also found as facts, in terms, as follows: “That the said transfer was made by said Isaac June to secure for himself and his family the use and occupation of the Tuscarora street house and lot, and to prevent his creditors from taking the same to apply upon his debts, and tire same was received by Lucretia June for the purpose of securing the said Tuscarora street house to her as a residence, and obtaining payment of the moneys due from Isaac June to her.”

“ That the consideration paid by the said Lucretia June for the Tuscarora street house and lot was inadequate and unfair, and that the said Isaac June consented to receive said consideration for the purpose of defrauding his creditors out of the amount » which the value of the-Tuscarora street house exceeded the consideration which was paid therefor by said Lucretia June, and that the said Lucretia June was aware of said intent.”

And, therefore, the court found as conclusions of law, that the plaintiff was entitled to judgment setting aside the conveyance of the Tuscarora street house and lot, by the defendant Isaac to the defendant Lucretia, “ so far as the same is an obstruction to the levying of executions to be issued upon his said judgments; ” but that the defendant Lucretia was entitled to hold that conveyance as security for the actual value of the Hollis house and lot, and the amount of the indebtedness actually due from the defenant Isaac to her at the date of the conveyances, and judgment was directed to be entered giving leave to the plaintiff to sell the Tuscarora street house and lot on his judgments against the defendant Isaac, with the same force and effect as if the conveyance to Lucretia had not been made, but providing that such sale should be subject to the lien of Lucretia, as the same should be fixed after the coming in of the report of the referee.

An interlocutory judgment was entered, accordingly; a hearing was had before the referee, and on the coming in of his report the amount for which the defendant Lucretia should hold the conveyance to her, as security, was fixed by the court at the sum of $2,111.04, with interest from the date of the conveyance; and a final judgment was directed and entered accordingly. It is from that judgment that this appeal is taken, with notice that with it the interlocutory judgment would be brought up for review.

Upon the case thus made by the findings of the learned court at special term, I can have no doubt that the contention of the appellant is fully sustained to the effect that the judgment is erroneous in so far as it adjudges the defendant Lucretia entitled to hold the conveyance to her as security and gives her a lien upon the property conveyed for the amount of the consideration rendered by her therefor. That conclusion does violence to the elementary principle that every contract, transfer or transaction which is vitiated by fraud is vitiated altogether; that the leaven of fraud leavens the whole lump. Here is the unequivocal finding that the conveyance was made with the intent on the part of the grantor to defraud his creditors, and that the grantee was aware of such intent. This takes the case out of the saving clause of the statute of fraudulent conveyances, which provides that “ the provisions of this chapter shall not be construed in any manner to affect or impair the title of a purchaser for a valuable consideration, unless it shall appear that such purchaser had previous notice of the fraudulent intent of his immediate grantor, etc.” 2 E. S., 137, § 5; Birdseye, 1287, § 23. The first section of the title pronounces its absolute condemnation upon every conveyance “ made with the intent to * * * defraud creditors,” without any mention of the intent with which such conveyance is received or of the consideration paid therefor; and § 5, supra, saves from such condemnation only those conveyances which are made for a valuable consideration and to purchasers who are without notice of the fraudulent intent. So that the statute itself makes a perfect case against the conveyance in question. And such is the doctrine of all the authorities. Starin v. Kelly, 88 N. Y., 421; Dewey v. Moyer, 72 id., 70; Billings v. Russell, 101 id., 226; Baldwin v. Short, 125 id., 553; 36 St. Rep., 138; Van Wyck v. Baker, 16 Hun, 168; approved in Davis v. Leopold, 87 N. Y., 620; Baldwin v. Short, 54 Hun, 473; 28 St. Rep., 105; Babcock v. Jones, 42 id., 318.

The only contention made by the respondents against the application of the statute to this case is an attempt to limit its operation to cases in which the grantee was not merely cognizant of, but an active participant in, the fraud. It' is clear that the limitation cannot be upheld. It has no warrant in the statute itself, nor in any authoritative decision.

The dictum of the commission of appeals in Dudley v. Danforth, 61 N. Y., 626, which is apparently favorable to such contention, was altogether obiter, since the referee in that case found, expressly, that both purchase and sale were made in good faith; while in Inglehart v. Thousand Island Hotel Co., 109 N. Y., 462; 16 St. Rep., 389, the referee not only did not find, but refused, on request, to find fraud either in fact or in law. The case of Boyd v. Dunlap, 1 Johns. Ch., 478, which affords an early precedent for the relief granted by the judgment appealed from, was one in which the chancellor held the conveyance assailed not fraudulent, either actually or constructively, but only given under “suspicious and inequitable circumstances.” See Bigelow v. Ayrault, 46 Barb., 143.

But it is quite unnecessary to discuss the question, here, whether the fact of knowledge, by the grantee, of the fraud intended by the grantor, is sufficient to avoid the conveyance, in tolo, without a finding of active participation in the fraud ; because such participation is • clearly made out by the findings in this case. The fraud as found consisted, chiefly, of. a fictitious valuation of the two properties for the purposes of the exchange; and in this false valuation the court finds that the defendant, Lucretia, participated with knowledge that the purpose of it was to defraud the creditors of her husband out of the amount by which the relative value of the property conveyed by her was thereby enhanced.

Moreover, she was the beneficiary and the sole direct beneficiary of the fraud. She was to have the benefit of every dollar fraudulently withheld from the creditors of her husband. The Tuscarora street property was to come into her hands for a consideration of $1,000 less than its true value as known to her, and, as she knew, for the purpose of fraudulently defeating the remedy of her husband’s creditors by that amount. Clearly when she became a party to the fictitious valuation of the properties transferred, and a party to the exchange based upon the fictitious valuations with knowledge of the fraudulent purpose of both, she became a party to the fraud, and amenable to its consequences.

In my opinion the judgment should be modified by striking out the provision for security and a lien in favor of the defendant, Lucretia, upon the property conveyed to her, and inserting a provision for the application of the entire proceeds of the sale of the Tusearora street property, or so much thereof as may be necessary, to the payment and satisfaction of the executions to be issued on the plaintiff’s judgments. Also by striking out the provision for costs in favor of the defendant, Lucretia, and substituting therefor a provision for costs in favor of the plaintiff against both defendants.

Judgment modified as stated in opinion of Haight, J., without costs.


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    Joseph Hutchinson, Pl'ff, v. The Supreme Tent of the Knights of the Maccabees of the World, Def't.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    1. Benefit societies—Waiver of proofs of loss.
    Where upon application to the general active officer of a beneficiary society for blanks for proofs of a disability claim, said officer declines to furnish them, saying it would be useless, as the injury did not constitute a disability and the claim would only be rejected, this constitutes a waiver of presentation of proofs of loss.

      2. Same— -Permanent disability.
    Plaintiff, who was a switchman, lost the fingers of his right hand while coupling cars. His certificate provided that in case of permanent or total disability, or on reaching the age of 70, he would be entitled to one-half of the endowment. His application provided that its statements, the application and the constitution of defendant should form the basis of the contract. The constitution provided that a total and permanent disability to perform or direct any kind of labor or business, etc., should entitle the holder to one-half the endowment. Held, that what is a total or permanent disability was thereby defined, and that under that constitution plaintiff was not entitled to recover.
    3. Same—Amendment of constitution.
    The constitution provided that it might be amended by a two-thirds vote, and an amendment was made prior to the injury, which provided that a member who by reason of a disability incurred after admission becomes unable to direct or perform the kind of business or labor which he has always followed, and by which alone he can thereafter earn a livelihood, is entitled to disability benefits, and that such benefits are “annually one-tenth part of the sum for which his endowment certificate is issued. Held, that the amendment when made became a part of plaintiff’s contract, and that he was entitled to recover only the first instalment.
    Motion for new trial on behalf of the defendant on exceptions taken on the trial at the Erie circuit and ordered to be heard in the first instance at the general term.

      Frank R. Perkins, for def't; Harlow C. Curtiss, for pl'ff.
   Haight, J.

This action was brought the for the purpose of recovering $1,000 on account of a disability occasioned by the loss of the fingers upon one of his hands. The defendant is incorporated under the laws of the state of Michigan as a Fraternal and Mutual Benefit Association. Its chief purpose is that of insuring its members against death or accident. Its principal organization and its branches are called tents, and known respectively as The Supreme Tent and Subordinate Tents. On the 3d day of February, 1886, the plaintiff applied to be admitted as a member of the association at Beaver Tent, No. 4, at the city of Toronto, where he was then living. His application was approved, and on the 10th day of March thereafter a certificate was issued to him by the defendant providing as follows: “This certifies that Sir Knight Joseph Hutchinson is a member of Beaver Tent, No. 4, located at Toronto, Ont., and that he is a beneficiary in good standing; that in accordance with and under the provisions of the laws governing the order he is entitled to receive one assessment on the membership, but not exceeding in amount the sum of two thousand dollars, as a benefit to Susan Hutchinson, his wife, upon satisfactory proof of his death and the surrender of this certificate, provided he shall have in every particular complied with all the rules and regulations of this order. In case of permanent or total disability, or upon attaining the age of seventy years, he will be entitled to receive one-half of said endowment, as provided in the laws of the order.”

Subsequently he removed to the city of Buffalo, and was thereupon transferred to Macedonian Tent, No. 85, one of the defendant’s subordinate tents at Buffalo, and continued to be a member of the order in that tent in good standing until the 1st day of November, 1889, when he received an injury to his hand in coupling cars, which necessitated the amputation of the fingers of the right hand. He then called upon one C. W. Hinson, an attorney, and an officer of the Macedonian Tent, to procure for him the money that he was entitled to under the certificate of membership. Thereupon Hinson wrote a letter to M. S. Boynton, the supreme record keeper of the defendant’s order at Port Huron, Michigan, asking for the necessary blanks upon which to make proof of the plaintiff’s disability. Boynton, in reply thereto, said that “ As the loss of a leg, or hand, or eye, does not constitute a total and permanent disability under our laws, it would be useless sending blank to fill out for a disability claim. It would only be rejected.” Thereupon this action was brought.

It is claimed that this action was prematurely brought, for the reason that the plaintiff had not submitted proper proofs of his disability, or waited until the expiration of the time given to the defendant to make payments of claims of this character under its constitution and by-laws. The supreme record keeper is made the financial secretary of the order, keeps all of the books and proceedings, signs the orders for the payment of money, and appears to be the general active officer of the order, subject to the board of trustees. His letter to the plaintiff’s attorney is in effect that it was useless for him to submit proofs of disability, as his claim would be rejected. We think that this was a waiver on the-part of the defendant of the necessity of presenting proofs of disability, and with complying with the formal procedure required by the defendant’s order to perfect the plaintiff's claim. Payn v. Mutual Relief Society, 17 Abb. N. C., 53, 57; Grattan v. Metropolitan Life Ins. Co., 80 N. Y., 281.

The trial court directed a verdict in favor of the plaintiff for $1,000, and the interest thereon from the commencement' of the-action. This was done upon the theory that the certificate issued to the plaintiff became the contract between the parties, and that under it the plaintiff was entitled to recover if his injury was; permanent, even though it was not total. There is no question but that his injury was permanent. It would have been permanent had he but lost the end of one finger at the first joint. But would such an injury entitle him to the endowment under the contemplation of the parties? The plaintiff, in his application for membership in the defendant’s order, states: 111 hereby agree that these statements, with this application, and the constitution of The Supreme Tent of the Knights of the Maccabees of the World, shall form the basis of" the contract for endowment.’’ The certificate issued to him, and which, it is claimed, constitutes the contract, provides, as we have seen, that in case of permanent or total disability, or upon attaining the age of seventy years, he will be entitled to receive one-half of the endowment, “as provided in the laws of the order.” We thus have the certificate referring to the laws of the order as fixing his rights to recover for his disability, and his express agreement in his application making his statements therein and the constitution of the order the basis of the contract between them for his endowment. It consequently appears to us that the constitution becomes a part of the contract. It was so treated in the case of Demings v. Supreme Lodge Knights of Pythias of theWorld, 131 N. Y., 522; 43 St. Rep., 872.

The constitution in force at the time the plaintiff became a member of the defendant's order provides, article 4, § 13 : “A total and permanent disability to perform or direct any kind of labor or business, or upon reaching the age of seventy years, shall entitle a member holding a certificate of endowment, so disabled or aged, to the payment of one-half of the endowment to which he would be entitled at death.” Here we have a definition, or a description of the disability, that would entitle the plaintiff to recover. It is not only permanent, but total, so as to-be unable to perform or direct any kind of labor or business.

It is not limited to the business in which the plaintiff was engaged at the time of his injury, but it is in the broadest language possible to use. “ A total and permanent disability to perform or direct any kind of labor or business.” A total disability is ordinarily one of fact, and is for the jury. It must be determined from the facts and circumstances disclosed in each case. That which would be total disability in one case might not be in another. The loss of a hand by a lawyer might interfere but slightly in the transaction of his business, or in the performance of his work. Whilst to a man who had learned a particular trade, by which he had always earned his living, and was entirely ignorant of all other trades or business, it might prove to be a much more serious disability. Ordinarily the loss of the fingers of the hand does not constitute total disability from the performance of any kind of labor or business. Knapp v. Preferred Mutual Accident Association of New York, 53 Hun, 84; 24 St. Rep., 882; Saveland v. Fidelity & Casualty Co., 67 Wisconsin, 174; Lyon v. Railway Passenger Assurance Co., 46 Iowa, 631; Young v. Travelers Insurance Co., 80 Maine, 244; Sawyer v. United States Casualty Co., 1 Bigelow Life & Accident Ins., 289; Hooper v. Accidental Death Insurance Co., 2 id., 573; Bacon’s Benefit Societies & Life Insurance, § 295 ; Ooolce on Life Insurance, § 108; 4 Harvard Law Be-view, 176.

We are, therefore, unable to see how the judgment can be sustained under the old constitution.

On the 8th day of February, 1887, the constitution was amended. The amended constitution provides that, “ A member who, by reason of a disability incurred after admission to endowment membership, becomes unable to direct or perform the kind of business or labor which he has always followed, and by which alone he can thereafter earn a livelihood, shall be deemed entitled to disability benefits.” The amended constitution further provides that in case of such disability the benefits that he shall be entitled to receive are “ annually one-tenth part of the sum for which his endowment certificate is issued.” So that under the amended constitution the plaintiff would be entitled to receive, if disabled, one-tenth of $2,000 annually, instead of $1,000 in a gross sum as provided under the former constitution. And the disability which shall entitle him to the receipt of this annual provision is where he is unable to direct or perform the kind of business or labor which he has always followed, and by which alone he can thereafter earn a livelihood.

The trial court was of the opinion that the amended constitution had no application to the case ; that the order could not by an amendment of its constitution change the rights of the plaintiff under his contract. Yre-are not able to concur in this view. As we have seen, the plaintiff in his application agreed that the constitution of the order should be the contract; The constitution then provided that it might be altered or amended as to the laws governing the endowment funds by a two-thirds vote of the members present at a regular meeting of the supreme tent, or at a special meeting called for that purpose. The supreme tent was composed of delegates elected by the certificate holders of the subordinate tents in the different states and Canada. Tire plaintiff, as a certificate holder, was entitled to vote for the person who should represent him as the delegate from the Macedonian Tent, the tent of which he was a member. He thus had a voice in determining whether or not there should be an amendment of the constitution. And the amendment when made must be deemed to become a part of the provisions of his contract. The amended constitution, therefore, became operative and binding upon him as well as the other certificate holders of the order. May v. New York Safety Reserve Fund Association, 13 St. Rep., 66.

His right to recover should, therefore, be determined by the provisions of the new, or of the amended constitution.

The evidence in the case clearly shows that the plaintiff is totally disabled from performing the duties of a switchman upon the railroads, and that for many years he has been engaged in that kind of labor. Whether lie can now earn a livelihood by some other business was a question of fact which, had it not been waived, should have been submitted to the jury. The defendant’s counsel asked the court to direct a verdict in the case, and did not thereafter request to have this matter submitted to the jury. He thereby left it for the determination of the trial court, and that court having directed a verdict in favor of the plaintiff, must be deemed to have determined the fact against him.

The amount of the verdict, however, should have been limited to the first instalment of $200 falling due under the constitution, with the interest thereon from the date of the commencement of this action.

The verdict should, therefore, be modified by reducing the amount thereof to the sum of $200, with' interest thereon from the date of the commencement of this action, being the amount of the first installment due under the amended constitution, and the verdict so modified, affirmed, and judgment ordered thereon for the plaintiff, with costs in the trial court, but without costs of this appeal to either party.

Dwight, P. J., Macomber and Lewis, JL, concur.


text:
    Mary Ann Noonan, Adm'rx, App'lt, v. The New York, Lake Erie & Western Railroad Co., Resp't.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1893.)

    1. Motions and orders—Renewal op motion.
    Where new and different facts have arisen, a motion may be renewed without leave.
    2. Same—Stay por non-payment op costs.
    In a former action by plaintiff the exceptions were ordered heard at general term, but plaintiff did not file the case and exceptions settled and gave notice that she abandoned them, and afterwards commenced this action for the same cause. Defendant moved to compel her to file the case and for a stay in this action until the costs of the first action were paid. The latter motion was denied and the former granted, hut reversed on appeal, and defendant entered judgment and taxed its costs. Held, that these new facts changed the situation of the parties, so that the motion for a stay could he renewed without leave.

      ■ Appeal from, an order of the Erie special term staying all proceedings in this action until the costs and disbursements of a former action between the same parties are paid.

      M. Fillmore Brown, for app'lt; George F. Brownell, for resp't.
   Haight, J.

In March, 1890, the plaintiff commenced an action in the supreme court, Genesee county, against the defendant to recover the damages which she had sustained by reason of the death of her son, occasioned by the alleged negligence of the defendant. Issue was joined in the action, and in November, 1891, it was brought to trial before the Hon. Henry A. Childs and a jury, at the Genesee circuit, which trial resulted in a nonsuit. An order was thereupon made giving the plaintiff ninety days to make a case and exceptions, and that the motion for a new trial be heard at the general term in the first instance, and that all proceedings be in the meantime stayed.

On the 14th day of October, 1891, a case containing exceptions was made, settled, signed and ordered to be filed. On the same day the order directing the motion to be heard in the first instance at the general term was vacated so as to allow the motion for a new trial to be made at the special term. The plaintiff did not file a case and exceptions as required, but on the 18th day of October thereafter served a notice upon the defendant that the plaintiff had abandoned her case and exceptions, and that an order without notice might be entered to that effect.

On the 28th day of October this action was commenced, in which the plaintiff seeks to recover damages for the death of her son, alleged to have resulted from the negligence of the defendant. Thereupon the defendant noticed two motions for hearing at the Erie special term, one in the first action, to compel the plaintiff to file the case and exceptions as settled, and the other in this action, asking that all the proceedings on the part of the plaintiff be stayed until the costs and disbursements in the first action should be paid. Both motions were argued at the same time. The motion in the first action was granted, and the plaintiff was ordered to file the case and exceptions within five days. And the motion in the second action was denied, with ten dollars costs of motion. Thereupon the plaintiff appealed to the general term from the order made in the first action, and that court reversed the order of the special term and denied the motion. The defendant then entered final judgment in the first action and taxed its bill of costs, and then noticed this motion for hearing based upon all of the papers and proceedings in the action.

The general rule is that a motion once denied at a special term cannot be renewed and heard by another special term, unless by the "terms of the order it appears that the motion was denied on some technical reason not affecting the merits, or leave is granted to renew the motion. Jay v. De Groot, 2 Hun, 205; Seaman v. Mc Reynolds, 52 N. Y. Supr. Ct., 543; Dunn v. Meserole, 5 Daly, 434; Talcott v. Burnstine, 13 St. Rep., 552; Klumpp v. Gardner, 44 Hun, 515; 9 St. Rep., 355.

But this rule has exceptions. Where new and different facts have arisen a motion may be renewed without consent. Smith v. Zalinski, 94 N. Y., 519, 524; Goddard v. Stiles, 99 id., 640.

The question, then, is as to whether the motion is based upon a new and additional state oí facts.

It will be remembered that the first motion for a stay was made in connection and at the same time with the motion directing the plaintiff to file the case and exceptions that had been settled in the former action. At that time the former action was pending, and no judgment had been entered therein. The order of the special term seems to have been made upon the theory that the plaintiff’s right to review or to move for a new trial could not be terminated by notice, and that it was her duty to proceed thereon, and that the case was still pending undetermined. That being the case, the motion in this action could not well prevail, and was, therefore, denied. On the review in the general term the order of the special term was reversed. By such reversal the court in effect held that the plaintiff’s right to move for a new trial was abandoned by her notice to that effect, and that the defendant could enter final judgment upon the nonsuit. After the decision of the general term the defendant entered its judgment and taxed its bill of costs, and then renewed the motion setting forth the proceedings in the general term, the entry of final judgment, etc., as additional facts.

As we have seen, the motion was based upon all the papers in the action, including those of the former motion, and of the order entered thereon. The special term was thus apprised of all of the proceedings, and of the former motion, and of the disposition that had been made thereof. And it appears to us that the new facts stated materially and substantially change the situation of the parties from that existing at the time the former motion was made. At that time the former action was pending undetermined. At the time of making this motion the former action had been terminated by final judgment, and the costs had been taxed thereon.

The complaints in the two actions differ some as to phraseology, and as to the grounds upon which negligence is charged. The gist of the action as alleged in each complaint is, however, in substance the same.

We do not regard the question discussed in reference to the election of remedies as having any bearing upon the motion.

The order should be affirmed, with ten dollars costs and disbursements.

Dwight, P. J., Macomber and Lewis, JJ., concur.


author: Barrett, J.

text:
    James C. Fargo, Pres't, Pl'ff, v. The New York & New England Railroad Co. et al., Def'ts.

      (Supreme Court, Chambers, New York County,

      Filed April 24, 1893.)

    Specific performance—Injunction.
    Where it appears from an inspection of the complaint in an action for specific performance that the contract sought to he enforced is very comprehensive, and its working details are very minute, involving continuous and successive acts, and the exercise of discretion and judgment as to what the parties shall do from day to day with regard to constantly varying Circumstances and contingencies, a mandatory injunction pendente lite will not be granted, as under such circumstances specific performance will not be decreed.
    Motion for an injunction pendente lite.

      Wheeler H. Peckham and Lewis Cass Ledyard, for pl'ff; Benjamin F. Tracy, Frank H. Platt and James Armstrong, for def'ts.
   Barrett, J.

The rule is that an in aid of performance, being merely ancillary to the main purpose of the bill, is dependent upon that, and must stand or fall with the hill. High on Injunctions, 3d ed., §§ 1109 and 1120. If, therefore, upon the case as made out by the complaint, the plaintiff is not entitled to a specific performance of the contract under consideration, he cannot have an injunction. Allen v. Burke, 2 Md. Ch., 534; Peto v. Brighton R. Co., 1 Hem. & M., 468; Baldwin v. Society, 9 Sim., 393.

This rule is especially stringent where a mandatory injunction is asked. Such injunctions are seldom allowed before a final hearing. They are only granted in extreme cases, and when the right is clearly established. High on Injunctions, 3d ed., § 2, and cases there cited.

The question, therefore, is whether a case for specific performance is here made out, and that depends, in the first instance, upon the nature of the contract sought to be enforced. The general rule is not to decree a specific performance of contracts which, by their terms, stipulate for a succession of facts whose performance cannot be consummated by one transaction, but will be continuous, and require protracted supervision and direction. Pomeroy on Specific Performance, § 312; Fry on Specific Performance, § 69, citing Blackett v. Bates, L. R., 1 Ch., 117, and Powell Duffryn Steam Coal Company v. Taff Vale Railway Co., L. R., 9 Ch., 331.

Mr. Waterman, in his excellent work on the same subject, puts the rule in this wise: “ Equity will not enforce the performance of continuous duties involving personal labor and care of a particular kind which the court cannot superintend.” He gives many illustrations of the rule, and cites numerous cases where courts of equity declined jurisdiction to enforce contracts involving continuous and successive acts. Waterman on Specific Performance, pages 68 and 69. This rule should not be confused with the rule under which the making, signing and delivery of such a contract as the present may, under proper circumstances, be enforced. That requires but a single act, like the renewal of a lease. The specific execution of the • contract, after it is made and delivered, is quite another thing. Let us now examine the present contract and see whether it comes within the reason of the above rule.

In the first clause the railroad company lets and demises to_ the express company, for the term of five years, the exclusive right and privilege to control, direct and transact all the transportation business that may be offered to or controlled by either of the parties thereto over and upon the passenger trains of the railroad company upon its branches, extensions and leaseholds “ now under its control, or which it may hereafter control, operate or lease.”

In the second clause the railroad company agrees to provide and furnish for the use and benefit of the express company, at all times, upon its passenger trains, a sufficient space in the baggage or other cars hauled upon said trains (and upon the boats of its connecting steamboat line, known as the “ ¡Norwich Line ”) for the proper and immediate transportation of all the matter the express company may desire to forward. Upon its part, the express company agrees to utilize the unoccupied space in the baggage or other cars of the railroad company to the greatest extent practicable.

Here, at once, we perceive a difficulty with regard to specific performance. The court cannot well make a single and sweeping decree which will execute these provisions. What may be a sufficient space for the proper and immediate transportation of express matter can only be determined when the question arises. The facts will necessarily vary from time to time, and the solution of such questions must depend upon the circumstances as they arise. The same difficulty would attend the enforcement of the correlative obligation of the express company. But further. It is provided in this second clause that the railroad company will, when necessary, put on additional cars for the use of the express company sufficient to transport the express goods upon its own lines, but only to such extent as can be taken upon its passenger trains without interfering with the passenger traffic or causing said trains to be delayed. How can the court decide by a single judgment when it may become necessary in the future to put on additional cars ? Or how many such cars will be sufficient for the transportation of express matter ? And how can it possibly be determined in advance that such cars will not interfere with the railroad company’s passenger traffic, or will not cause its trains to be delayed ?

The impossibility of executing such a contract once for all by a single decree is quite apparent. Provisions suggestive of similar and of still greater difficulties run through the entire contract. Thus, in the third clause the railroad company agrees, if it can ■make satisfactory arrangements with its connections, to haul over its lines by an all-rail route, each night, upon passenger or other trains satisfactory to the express company, such number of cars (not exceeding three on any one train) as may be necessary for the carriage of express matter between certain specified points; the route by which such all-rail transportation is to be performed to be satisfactory to the express company.

To execute this provision’ would require the railroad company first to sécure the express company’s approval of trains and route, and then to negotiate with its connections, and' make satisfactory arrangements with them regarding such trains and route.

It is also provided in this clause that in certain contingencies the railroad company shall run an additional train at a rate of compensation to be fixed and agreed upon from time to time by the parties to the contract.

In the fourth clause, the railroad company agrees to furnish to the express company for the prompt and proper care and handling of its express matter, and for the loading and unloading of the same into and from the cars, all requisite, reasonable and necessary facilities, conveniences and rooms at every station and terminal point of the railroad and of the steamboats of the Norwich line. When the station facilities require a building apart from the station or a special room in the station, a reasonable rental is to be paid therefor.

To enforce this covenant would require the court to determine from time to time whether the facilities offered were reasonable, the conveniences and rooms sufficient, and also the reasonable rental of special buildings and rooms.

■ We also find in the same clause a provision that all transfers of express matter to and from the cars, or to and from the stations, shall be performed by men to be provided by the express company, llvjith the assistance, when necessary, of the employes of the railroad company to such an extent as such assistance can be rendered without interference with the other duties of the employes of said railroad company.”

Under this, two questions might come up for decision daily for the next five years. First, whether the services of the employes -of the railroad company were necessary to the express company; and, second, whether such services could be rendered without interfering with the other duties of such employes.

There is also a covenant that the express company may, from time to time, employ the railroad company’s station agents to act also as their agents. This, however, must be with the consent of the railroad company’s general superintendent or the division superintendents. Even this consent is subject to the proviso that such employment “ does not interfere with the full and prompt discharge of their duties to the railroad company by said station, agents.” And the express company agrees to be solely and -entirely responsible for all the acts of such station agents, and to pay the railroad company, unless otherwise specifically agreed, for their services as such express agents.

- Further illustrations are unnecessary. Suffice it to say that the contract is exceedingly comprehensive and that its working details are most minute. These details almost invariably provide for special and varying contingencies, and the elements of discretion and judgment with regard to such contingencies abound. It is apparent that the due execution of such a contract must involve the ascertainment of what it is right and proper that the parties should do from day to day, with regard to ever varying circumstances. A decree for specific performance couched in the precise terms of the contract itself vrould be but the beginning of the judicial work. If, for instance, the court should adjudge that the railroad company at all times furnish a sufficient space in its cars, and afford the express company from time to time requisite and reasonable facilities, conveniences and rooms and the assistance of employes when necessary, etc., is it not entirely clear that the question of compliance would involve supplemental judgments, from time to time, upon subsequent and successive issues of fact? And would not the enforcement of the judgments upon these supplemental inquiries call for successive proceedings to punish for contempt ? The answer must plainly be in the affirmative. I feel constrained to say that this contract is not only within the rule, and the reason of the rule, but that it is an extreme illustration of the difficulty which would attend an attempt to enforce continuous and successive acts by a judicial decree.

The hardship of leaving the plaintiff to what is possibly an inadequate remedy at law has induced me to examine the authorities, with the hope of finding some precedent in support of this action which would justify the retention of the injunction. But, after an exhaustive search, I have been unable to find any case, even approximating to the present in its facts, where there was the least deviation from the general rule.

In Blackett v. Bates, supra, a bill was filed for the specific performance of an award which required that the defendant should execute to the plaintiff a lease of the right to such part of a railway made by the plaintiff as was on the defendant’s land, and that the defendant should be entitled to run carriages on the whole line on certain terms, and might require the plaintiff to supply engine power, while the latter should have an engine on the road; and that the plaintiff, during the whole time, should keep the entire railroad in good repair. A demurrer to the bill was sustained, Lord Oran worth holding that the defendant could not get what he was entitled to, as his right was not a right to something, that could be performed at once, but a right to erf orce the performance hy the plaintiff of daily duties during the whole term of the lease. The court remarked that it had no means of enforcing the performance of daily duties during the term of the lease; that it could do nothing more than punish the party by imprisonment or fine in case of failure to perform them and might be called on for a number of years to issue repeated attachments for default. The result was that as the contract could not be enforced against the plaintiff it was not enforced in his favor.

In Powell Duffryn Steam Coal Co. v. Taff Vale R. Co., supra, the head note reads as follows: “ A railroad having refused to allow the plaintiffs to run engines and carriages over part of their line, under the powers of the Railway Clauses act, the plaintiffs filed their bill for an injunction to restrain the company from preventing their exercise of the right. Held, that inasmuch as the plaintiffs could not run over the line unless the points and signals of the line were properly worked by the railway company, the court could not grant relief, as it does not order the performance of a continuous act like working signals, the doing of which requires continuous attention and cannot be seen to by the court.” In this case Lord Justice Cairns remarked: “ It is not the practice of the court to compel by injunction either a company or an individual to do a continuous act which requires the continuous employment of people.”

In Baldwin v. Society, etc., 9 Sim., 394, there was an agreement between the plaintiffs and the defendants, whereby the plaintiffs, in consideration of certain payments to be made by them to the defendants, were to have .the exclusive right of engraving and publishing a series of maps from drawings to be furnished to them from time to time by the defendants. The court refused to restrain the defendants from acting in violation of the agreement, as it could not compel them to furnish the drawings, and, therefore, could not decree a specific performance of the agreement.

In Marble Company v. Ripley, 10 Wallace, 339, the supreme court of the United States held that the specific performance of a contract will not be decreed where the duties to be fulfilled are continuous and involve the exercise of skill, personal labor, and cultivated judgment. The contract in this case was to deliver marble of certain kinds and in blocks of a kind. Mr. Justice Strong said that it was manifest that the court could not superintend the execution of a decree for the specific performance of such a contract.

In our own state the general subject was discussed in Beck v. Allison, 56 N. Y., 366. The precise point there decided was that equity would not enforce the specific performance of an agreement contained in a lease, upon the part of the lessor, to repair damages caused by fire. The reason given in that case for the denial of specific performance is, however, quite applicable to the present. “It is obvious,” said Judge Grover, “ that the execution of contracts of this description under the supervision and control of the court would be found very difficult, if not impracticable.” The case of Rayner v. Stone, 2 Eden, 128, was cited with approval. In that case a demurrer to a bill for the specific performance of covenants contained in a lease to repair hedges and the Mansion House, was sustained by Lord Worthington. “Among the reasons assigned for the judgment,” said Judge Grover, “ was that the court had no officer to see to the performance, which the chancellor said was to him very strong. He asks how can a master judge of repairs in husbandry, etc.”

The reasoning in Blanchard v. Detroit, etc., R. R. Co., 31 Mich., 43, is directly in point. I quote the language of Graves, Gh. J.: “ Can the court see that in all coming time these requirements are carried out ? Can it know or keep informed whether trains are running, and what accommodations are suitable to the public interest ? Can it see whether the proper stoppages are made each day ? Can it take notice or legitimately and truly ascertain from day to day what amounts to regularity in the receipt and discharge of -passengers and freight ? Can it have the means of deciding at all times whether the due regularity is observed ? -'Can it superintend and supervise the business and cause the requirements in question to be carried out? If it can, and if it may do this in regard to one station on the road, it may, with equal propriety, upon a like showing, do the same with regard to all stations on the road, and not only so, but in regard to all stations on all the present and future roads in the state. That' any such jurisdiction is impracticable appears plain, and the fault lies in the circumstance that the objects of The parties as they tuere written down by them are, by their very nature, insusceptible of execution by the court."

The language of the court in Atlanta, etc., R. R. Co. v. Speer, 32 Georgia, 550, is equally pertinent. In this case the court observed: “We are not asked to compel the plaintiffs in error to transport a particular article of freight now being on the platform awaiting transportation. We are asked that they shall, in all future time, transport all freight and deliver it as required by the defendant in error in the terms of the contract. * * * The court cannot make a decree which will be satisfied by any specific act of performance. After decree made, the case must be kept open, and if the defendant in that decree be contumacious, there must be action of the court to enforce if, twenty, perhaps fifty, times a year for all time." See also Cincinnati & Chicago R. R. v. Washburn, 25 Ind., 259; Columbus R. R. Co. v. Watson, 26 id., 50; Danforth v. Phila. R. R. Co., 30 N. J. Eq., 12; Wheatley v. Westminster Coal Co., L. R., 9 Eq., 538; Lord Abinger v. Ashton, 17 id., 358; Pomeroy on Specific Performance, § 312.

The last case in England on this subject will be found in “ The Times Law Reports,” for the week ending November 23, 1892. No. 4, vol. 9, page 73. There the lessee of a flat in a London apartment house brought an action for the specific performance of an agreement by the lessor in the lease to appoint a resident porter who should perform certain services for the tenants. The lords justices dismissed the bill, giving as a reason that the court could not decree specific performance because it was a contract to be performed during the whole of the tenancy from day to day, and would require constant superintendence if specific performance were granted.

Upon both principle and authority, therefore, my conclusion is that this action cannot be maintained, and that the injunction must be denied.

There are two other points upon which I feel sufficient doubt to prevent the granting of so extraordinary a remedy as the mandatory injunction which is asked. I refer to the question of damages and to the question of plaintiff’s right as against the defendant express company to enter into the contract in question with the railroad.

As to the first point, the plaintiff was bound to show the facts justifying its conclusion that it will suffer irreparable injury bv the breach of the contract. McHenry v. Jewett, 90 N. Y., 62. ít is true that the plaintiff avers that it has contracted for express privileges with .connecting railroads, and that the use of express facilities upon defendant’s railroad is necessary to it in the transportation of express matter between certain specified points and destined for other points beyond. The facts, however, with regard to these other contracts are not fully disclosed, nor are any facts averred from which irreparable injury can with reasonable certainty be deduced, while all the allegations of irreparable injury are positively denied. - There is also an explicit denial that the use of express facilities upon defendant’s railroad is necessary to the plaintiff in the transportation of express matter between the points mentioned in the complaint.

As to the second point, the contract in question was, according to the contention of the defendant express company, entered into in direct violation of a covenant with it. Whether that covenant is properly susceptible of the construction contended for is not entirely clear. This seems to have been the opinion of Mr. Justice Ingraham in the direct action brought by the defendant express company against the present plaintiff. The covenant was not clear enough to warrant an injunction in favor of the defendant express company prior to the hearing, The position being now reversed, it is fair to conclude that such covenant is not so ■entirely clear as to warrant an injunction against them prior to the hearing. If I am right, however, upon the main question*' then these latter points are secondary, and will not be reached upon the trial of the action.

_ My conclusion is that the motion for an injunction must be denied and the temporary injunction dissolved, with costs.


author: Giegerich, J.

text:
    Harry J. Hiscox, Pl'ff, v. The New Yorker Staats Zeitung et al., Def'ts.

      (New York Common Pleas, Special Term,

      Filed March 23, 1893.)

    Costs—Consolidation on actions.
    Where two or more actions are consolidated they are thereby discontinued and the consolidated action alone remains; and where the order of consolidation contains no provision reserving the right to costs in the original actions already accrued, costs in the consolidated action can alone he allowed.
    Motion by both parties for a new taxation of costs. The facts are stated in the opinion.

      Samuel Blythe Rogers, for pl'ff; J. H. K. Blauuelt, for def’ts.
   Giegerich, J.

This action is the result of the consolidation of two actions against the Staats Zietung and Mr. Ottendorfer, respectively. The Ottendorfer case was commenced first, and the plaintiff afterward brought suit against the newspaper. Both actions were brought for the same libel published in the afore-mentioned newspaper. Issue was joined in the Staats Zeitung case, which was placed on the calendar, and a notice of trial was served. Issue was joined in the case against Mr. Ottendorfer and a notice of trial was served, but the cause was not put upon the calendar.

On February 9, 1893, an order was entered consolidating these two actions into one, entitled against both defendants, and directing the service of an amended complaint and answer in the consolidated action, and that “ said cause retain its place upon the calendar.” A few days thereafter the defendant made aip offer of judgment, "with costs, in the action so consolidated, which was accepted, and the plaintiff is about to enter judgment thereupon. No notice of trial has been served in the consolidated action. The plaintiff’s proposed bill asked for costs to date in the Staats Zeitung case, and these were allowed by the clerk, though objected to by the defendant. The plaintiff asked also for costs in the Otten dorfer case, which, on being objected to by the defendant, were disallowed by the clerk.

Both parties apply for a review of the clerk's taxation. The plaintiff contends that “ neither action was discontinued,” but that both actions “ continue alive,” and that they “ simply merge into each other.” The authorities, however, do not favor this contention. By consolidation, the other actions were discontinued, and only the consolidated action remains. Blake v. Mich. So. R. R. Co., 17 How., 228. The case of Earl v. Lefferts, 1 John's Cas., 395, decided in 1800, seems to hold to the contrary ; but this case cannot be regarded as an authority, for the very objects of consolidation are to prevent the unnecessary accumulation of costs and a multiplicity of actions. Thompson v. Shepherd, 9 Johns., 262; Brewster v. Stewart, 3 Wend., 441; Blake v. Mich. So. R. R. Co.; supra; Third Ave. R. R. Co. v. Mayor, 54 N. Y., 159; see 2 McCarty's Civ. Pro., 177, note on consolidation of actions.

Where a consolidation is ordered, the successful party will be entitled to tax only the costs of the consolidated action, unless the right to tax the costs of the discontinued action is reserved in the order. Blake v. Mich. So. R. R. Co., supra; 1 Ramsey's Pr., 236. Hogeboom, J., in delivering the opinion of the court in the case of Blake v. Mich. So. R. R. Co., supra, well says : “ I know of no principle by which costs in actions discontinued can be included in another action, even though it embraces the cause of action in the first. Provision for such costs must be made in the discontinued actions before they finally cease to exist”

Inasmuch as the order of consolidation contains no provision reserving the right to costs of the original actions, already accrued, it follows that the plaintiff is not entitled to costs in either of them. Blake v. Mich. So. R. R. Co., supra.

The plaintiff, therefore, should be allowed only costs of the consolidated action.

For these reasons, the taxation of the plaintiff’s costs should be set aside, and a new taxation directed before the clerk, who should allow to the plaintiff costs and disbursements in the consolidated action only from the time of the consolidation of the original actions, viz., February 9, 1893, to the time when the offer of judgment was made, and disallow all items in the two actions which were consolidated. The clerk will, therefore, allow only for proceedings before notice of trial, and disbursements made or incurred since February 9, 1893, to the time when the offer of judgment was made.


author: Pryor, J.

text:
    Fannie M. Moses, Pl'ff, v. The Central Park, North & East River Railroad Co., Def't.

      (New York Common Pleas, Special Term,

      Filed April 21, 1893.)

    1. Verdict—Quotient.
    A verdict rendered in pursuance of an antecedent agreement of jurors to accept one-twelfth of the aggregate amount of their several estimates, without the assent of their judgment to this sum, is a quotient verdict, and as such invalid.

      2. Same.
    But, though the jurors divide the aggregate of their several estimates by twelve, and return the sum as their verdict, it is not invalid if they assent to the amount as their verdict.
    3. Same—Impeachment.
    Affidavits of jurors are inadmissible to impeach their verdict as a quotient verdict.
    4. Same—Laches.
    A motion to set aside a verdict because a quotient verdict may be denied for laches in applying for the relief.
    Motion to set aside verdict.

      Henry Thompson, for motion; William B. Waring and Christopher Fine, in opposition.
   Pryor, J.

In an action for damages from a negligent injury, the plaintiff had a verdict for $9,216.66 ; and the motion is to set it aside because a “ quotient ” verdict; that is, a verdict rendered upon an agreement for one-twelfth of the aggregate amount of 'the several estimates by the jurors. That a verdict so reached is invalid, unless sanctioned by the judgment and concurrence of the jury, is a proposition too clear to require argument or authority in its support.

But that the verdict was so found rests exclusively on the affidavits of jurors, and the learned counsel for the plaintiff objects that the evidence was inadmissible to show the fact. If the contention be correct it is fatal to the motion.

That a diversity of decision upon the point prevails both in England and in this country is undeniable; but that the clear weight of authority abroad and at home sustains the doctrine that the evidence of jurors is incompetent to impeach their verdict by proof of their own misconduct is unquestionable upon a review of the adjudged cases. Crawford v. State, 24 Am. Dec., 477 note; Forester v. Guard, 12 id., 142 note; Newton v. Booth, 37 id., 600 note; State v. Harper, 9 Am. St., 49 note; 12 Am. & Eng. Encyc. of Law, 378 note. That a quotient verdict involves misconduct on the part of the jury is plain upon principle as1 implying infidelity to their oath to render a true verdict according to the evidence, and is settled by abundant authority. Dana v. Tucker, 4 Johns., 487; Warner v. Robinson, 1 Root, 194; Wilson v. Berryman, 5 California, 44; Elledge v. Todd, 1 Humph., 43; 12 Am. & Eng. Encyc. of Law, 378 note.

Whatever the conflict of opinion in other jurisdictions, in this state the rule is clear and conclusive that a juror will not be admitted to invalidate the verdict by inculpation of himself or his fellows. “ The rule is well established, and at this day rests upon well understood reasons of public policy as connected with the administration of justice, that the court will not receive the affidavits of jurors to prove misconduct on their part, or any act done by them which could tend to impeach or overthrow their verdict.” Allen, J., in Dalrymple v. Williams, 63 N. Y., 361, 363. The court .dismissed the appeal, “reaffirming the principle that jurors cannot be heard by affidavit or otherwise to impeach their verdict.” Williams v. Montgomery, 60. N. Y., 648.

The affidavit of a juror cannot be received to impeach the verdict for mistake or error in respect to the merits, or misconduct either on his own part or that of his fellows.” Cowen, J., in Clum v. Smith, 5 Hill, 560; Dana v. Tucker, 4 Johns., 487; People v. Carnal, 1 Park., 256; Wilson v. People, 4 id., 619; Messenger v. The Bank, 6 Daly, 190; Kelly v. Sheehy, 8 id., 29; Gale v. R. R. Co., 53 How., 385; Ostrander v. People, 28 Hun, 48; People v. Barker, 2 Wheeler, 19; Green v. Bliss, 12 How., 428; Taylor v. Everett. 2 id., 23; Thomas v. Chapman, 45 Barb., 98; Reynolds v. Champlain Trans. Co., 9 How., 7.

The reasons for the exclusion of evidence by jurors to impugn their verdict are obvious and unanswerable, namely : First. Because it would tend to defeat their own solemn acts under oath. Secondly. Because its admission would open a door to tamper with jurymen after they had given their verdict; and thirdly, because it would be the means, in the hands of a dissatisfied juror, to destroy a verdict at any time after he had assented to it. 3 Graham & Waterman on New Trials, 1428.

Waiving the objection and accepting the affidavits as legitimate evidence in impeachment of the verdict, still it is ineffectual for the purpose. For the validity of a quotient verdict is contingent upon whether the jury agreed in advance to abide by the result, Dana v. Tucker, 4 Johns., 487; Johnson v. Husband, 22 Kansas, 277; Leverett v. State, 3 Texas App., 213; Tinkle v. Dunivant, 16 Lea, Tenn., 503; Roy v. Goings, 112 Ill., 656; Miller v. R. R. Co., 5 Mo. App., 471; and here, upon defendant’s own papers, such binding obligation is not unequivocally apparent.

Assuming otherwise, however, and yet the verdict is not invalidated ; because, upon a poll of the jury, each answered that it was his verdict. “ After the result of the division was known, they individually assented to the sum as their verdict.” Dana v. Tucker, supra. “ The verdict may be determined by average or other similar means, provided the jurors agree upon such sum, after it is found, as their verdict.” Wilson v. Berryman, 5 Cal., 44; 63 Am. Dec., 78. If a proposed verdict is found by taking one-twelfth of the aggregate amount, and this is afterwards assented to, the verdict is good. Bennett v. Baker, 1 Humph., 399; 34 Am. Dec., 655.

Conceding the preceding points to the defendant, the verdict is still invulnerable, upon the affidavits of seven of the panel, that it was not found by the irregular method imputed, but by the concurrent judgments of the jurors. “ In addition to the fact that no complaint or objection was heard from the juror when the jury was polled, lie is contradicted by the affidavits of ten of his fellow-jurors.” McDade v. State, 27 Texas App., 641; 11 Am. St., 216. ‘‘While the affidavits of jurors are not to be received to impeach a verdict, they may be admitted in exculpation of the jurors, and in support of their verdict.” Dana v. Tucker, 4 Johns. 488.

The evidence is persuasive that no irregularity invalidates the verdict.

I may add that the motion might well be denied because of the laches of the defendant in applying for the relief. Rapelye v. Prince, 4 Hill, 119, 125.

Motion denied, with costs.


author: O'Brien, J.

text:
    Johanna Moskovitz et al., Adm'rs, Resp'ts, v. Charles Lighte et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed March 17, 1893.)

    1. Negligence—-Cashless dbiving.
    Proof by a witness that when she first saw defendant’s wagon it was thirty-five or forty feet from the crosswalk, with the team going at a slow trot; that there were no obstructions to the view; that plaintiffs’ child, four years old, was crossing, and was knocked down by the horses, is sufficient to make out a prima facie case of negligence, as it is susceptible of the inference that if the driver had been sufficiently vigilant and careful, he would have seen the child in time to avoid injuring it.
    2. Same.
    The fact that plaintiffs had only one witness, and that three disinterested witnesses testified that the child ran into the horses, and that the driver stopped as soon as possible, does not constitute such a preponderance of evidence in favor of defendant as to require a reversal, where one of such witnesses also testified that the two men on the wagon where talking together and did not look until an alarm was given.
    3. Same—Damages.
    Where the plaintiff is a widow, with four children between tne ages of thirteen and four years, a verdict of $2,000 for the death of the youngest child caused by negligence is not excessive.
    Appeal from a judgment entered upon the verdict of a jury, and from an order denying defendants’ motion for a new trial, in an action to recover damages for negligence.

      J. Aspinwall Hodge, Jr., and Robert Sewell, for app'lts; Edgar J. Nathan (Francis L. Wellman, of counsel), for resp'ts.
   O'Brien, J.

This action was brought to recover for the negligence of the defendants’ servants, in causing the death of plaintiffs’ intestate. At the time of his death the decedent was four years of age, and lived with his mother, who was a widow. On the morning of the accident he was playing in his mother’s room, but, during the latter’s absence to fetch water the child escaped, and got into the street, where it met with the injuries resulting in its death. The age of the child, and the circumstances under which it got upon the street, presented a question for the jury as to whether the negligence of the child itself, or that of the mother, assuming upon the facts that it was imputable to the child, contributed to the death. The more serious questions are : Did the plaintiffs make out a prima facie case of negligence on the part of defendants’ servants ? And, assuming they did, was not the weight of evidence, upon the whole case, with the defendants, upon the question of such negligence?

All the testimony presented on the part of the plaintiffs, being that of one witness, is so brief that we can give a complete summary of it. Blumenfelt, called on behalf of plaintiffs, and who was examined through an official interpreter, testified as follows : That on the 9th of May, 1892, when the accident occurred, “ I was standing at Avenue A, corner of First street, at the southwest corner. I saw that the wagon of Lighte Bros, came along from Houston street to Avenue A. It came from Houston street, east side, to the west side of Avenue A. I first saw the truck when it came into Avenue A. The horses were only going ordinarily, like ; slowly; not very quickly. They were in a trot The horses, when I first saw them, were about fifty or sixty feet away from me. I did not see any wagon or other obstruction between me and this truck. I first saw this little boy when he was on the cross walk between the butcher shop and music store. He was coming from the meat market to the music store. When I first saw the boy on the cross walk, this truck was about thirty feet, perhaps thirty-five feet, away, and the boy was about thirty-five or forty feet from the truck. The boy was not going quickly. He was walking. I saw that the boy fell from the first horse of the truck, fell in front of the horse. The feet of the horse made him fall. When he fell, he was over the tracks, near the corner of First street.”

He further testified that there was no truck, carriage, or other wagon in front of defendants’ truck before it struck the boy, to prevent the witness seeing the accident, and, further, that he heard a-scream, and it was after he heard this scream that the driver stopped his horses. While this evidence is very slight and unsatisfactory, we cannot, as a matter of law, in the face of the cases of Birkett v. Knickerbocker Ice Co., 110 N.Y., 506; 18 St. Rep., 130; Murphy v. Orr, 96 N. Y., 14; and Moebus v. Herrmann, 108 N. Y., 349; 13 St. Rep., 648, hold that this testimony did not present a prima facie case for the jury upon the question of defendants” negligence. In Murphy v. Orr, which was a case like this, of a child, between three and four years of age, while on the crosswalk, and passing over, being knocked down by one of the horses of a team attached to the defendants’ truck, and the testimony in that case showing that the horses were moving at a walk, it was held that the trial judge committed no error in charging the jury to say whether, under all the circumstances surrounding the transaction, the driver was negligent in not discovering the child in time to prevent the injury; and, in the course of the opinion, Danforth, J., says: “ Whoever drives horses along the streets of a city is bound to anticipate that travelers on foot may be met at the crossing, and must take reasonable care not to injure them. He is negligent whenever he fails to look out for them, or when he sees, and does not, so far as in his power, avoid them. There was evidence in this case fairly leading to either of these conclusions in regard to the driver’s conduct. The day was clear and bright. The street was unobstructed. The horses, quietly moving on a walk, were completely under his control, and from his elevated seat he could, as is conceded, see a block away, and all around,, in front and on both sides.”

This view as to the duty devolving upon drivers of trucks upon the public streets was enforced in the case of Moebus v. Herrmann, supra, which was a like action, to recover damages for personal in> juries received by a boy about seven years of age, who, when crossing a street in the city of Brooklyn, was struck, knocked down and.injured by a horse belonging to defendant, attached to his truck, and driven by his servant. The additional fact appeared that the injury was received while the boy was attempting to cross the street, not at the crosswalk, but at another point. And it was therein held (head note:) “ That a person on foot, desiring to cross a city street, has a right to cross, not only at the crosswalk, but wherever he pleases, and one driving horses upon the street is bound tobe watchful at all points, as well as at the crossings, so as not to injure persons crossing. If, therefore, through the omission of a servant engaged in the business of, and driving the horse of, his master, to perform this duty, he does not see a person crossing at a point where there is no crosswalk, or if, seeing him, he fails to stop his horse in time, when, with proper care, he might have done so, and the latter is injured without fault or negligence on his part, the master is liable for the damage.”

The principle enunciated in these two cases was again enforced in Birkett v. Ice Co., supra, which was a case of a girl, four years and a half old, being killed by horses attached to defendant’s ice wagon, which were driven against her at a street crossing in the city of Brooklyn. This, upon many of the questions here involved, is an instructive case,-and is to us a seeming authority upon the question of the sufficiency of plaintiffs’ testimony as to making out a prima facie case, and upon the rule to be applied in determining -what degree of care is to be exacted of a child of tender years. In the opinion it is said: “If the intestate had been an adult, we think the evidence would have justified the claim of the defendant, that her own negligence contributed to the injury. But she was non sui juris, and personal negligence could not be imputed to her. It is, however, contended that she was so young that her parents were guilty of negligence in permitting her to go into the streets unattended. The intestate resided with her parents in a thickly populated neighborhood, and there was no inclosed space around the house for children to play, and plaintiff’s children were permitted to play upon the sidewalk near his house. * * * It cannot be said that it was, as a matter of law, under the circumstances proved, negligence for the parents to permit her to go on the sidewalk to play; and whether it was or not was a question for the determination of the jury.’’

And again, in the opinion, it is said, and this bears upon the question we are discussing, as to whether the plaintiffs here made out a prima facie case: “We are also of opinion'that there was no error in submitting the question of the negligence of the defendant’s driver to the jury. His wagon was heavily loaded, and he was driving upon a descending grade. There was apparently nothing to distract his attention, and it was his duty to be vigilant to see obstructions in the street, and particularly at street crossings, so as not to injure them. While we do not think this branch of the plaintiff’s case is free from doubt, we are unable to say that the jury could not properly find that, if the driver had been sufficiently vigilant and careful, he would have seen the child in time to avoid injuring her.”

So we say here. The plaintiffs’ testimony is unsatisfactory, and by no means free from doubt; but it is susceptible of the inference that, if the driver had been “ sufficiently vigilant and careful, he would have seen the child in time to avoid injuring him.”

The evidence of the plaintiffs being, upon the authority of these cases, sufficient to make out a prima facie case, the question still remains as to whether or not, upon the whole case, considering the number of witnesses produced by defendants, there was not a clear preponderance in defendants’ favor upon the question of negligence, sufficient to justify a setting aside of the verdict. It must be remembered, however, that a judgment will not be reversed on the ground that the verdict is against the weight of evidence merely because this court is of opinion that, if it had to decide the question of fact, it might take a different view, and reach another conclusion, but that it is only where the verdict is without evidence, or so decidedly against the weight of evidence as to indicate partiality, corruption, or gross ignorance; that this court will disturb the verdict.

Outside of the driver and his assistant, three disinterested witnesses were produced for defendants, who tended to support the version given by the driver, that the death was caused by the child’s running from.the sidewalk across the street, and into the defendants’ horses, and that the driver stopped as soon as, under the circumstances, it was possible. It is argued that these witnesses in no way contradicted the witness produced by the plaintiffs, but that they supplemented and reconciled his testimony to a version consistent with the absence of negligence upon the part of the defendants’ servants. While there is much force in this suggestion, and while thé case, upon all the facts, is a close one as to whether or not the motion to dismiss the complaint should not have been granted, we think that, upon the authorities already cited, it was a question, upon the entire testimony, to be presented upon both branches to a jury; and a piece of evidence that is to some extent important, given by one of the disinterested witnesses for the defendants, might, if the jury gave it sufficient weight, have explained the failure of the' defendants’ driver to observe the child .in time to avoid the injury. The testimony of this witness, who was a woman, was that “ there were two men on the wagon, one with light hair, and one with black, and they were driving ahead. They were talking together. They did not look at no one,,at all until after I hollered.” Upon a fair and impartial charge, therefore, the questions having been presented to the jury, their verdict is conclusive.

The amount awarded by way of damages, namely, $2,000, is large, but not so excessive as to justify us in reversing the judgment upon this ground. As said in Lockwood v. Railroad Co., 98 N. Y., 523: “ The courts have found it impossible to lay down any definite guide for the jury in estimating damages under the act in question. * * * In but few cases arising under this act is the plaintiff able to show a specific pecuniary loss suffered by the next of kin from the death, and generally the basis for the allowance of damages has to be found in proof of the character,, quality, capacity and condition of the deceased, and in the age,, sex, circumstances and condition of the next of kin. The proof' may be unsatisfactory, and the damages may be quite uncertain and contingent Yet the jurors, in e'ach case, must take the elements thus furnished, and make the best estimate of damages they can.”

Here the evidence showed the condition and circumstances of the mother, who was the sole next of kin; and she testified as to-the facts connected with her own affairs; that she was a widow, the mother of four children; the eldest but 13, and the youngest, the decedent, but 4 years of age. And this testimony was presented for the consideration of the jury.

It is insisted, however, that in addition to condition and circumstances, the age of the mother should have been given. In Carpenter v. Railroad Co., 38 Hun, 120, the following appears-in the opinion: “One element in the sources from which loss, to those for whose benefit a recovery in such case is had, is to-be ascertained, is their age, condition and circumstances. There is an entire absence of evidence in any of those respects of the father of the deceased. That he was living is the only fact, which can be assumed in relation to his condition upon the-evidence.”

This case it is contended by the appellants, is conclusive of the view that the failure to prove the age of the mother was fatal to any recovery beyond nominal damages. We think, however, that, taking the very language which we have quoted from the opinion in the case relied .upon by him, he overstates the rule-in his own favor. That case does not go to the extent of holding that the mere failure to prove the age is fatal to any recovery. In that case there was no proof of age, condition or circumstances, and, as therein stated, there was no evidence before the-jury except the single fact that the father, whose loss was to be* determined and compensated in damages under the statute, was-alive.

Here, as shown, the circumstances and condition in life of the mother were proved. She was produced as a witness and examined before the jury, who, independently of the information derived from her testimony, were in a position to determine, without any great danger of being seriously misled, about her age. Had. she not been produced, there would be much force in the argument of appellant; but, being fully examined and cross-examined by counsel upon the trial, and proof being furnished that she had young children, this, together with her appearance, was evidence from which the jury were at liberty to infer her age. And even though she had been much further advanced in years than the jury would have been justified in concluding from the circumstance of her having young children, the award could not, under the rules for estimating damages, bfe deemed excessive, and the judgment on this account should not be disturbed. We are of opinion, therefore, that the judgment should be affirmed, with costs and disbursements.

Van Brunt, P. J., and Follett, J., concur.