text:
    In the Matter of the Judicial Settlement of the Account of Emily A. Smith, Trustee under the Will of Edmund A. Smith, Deceased.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    Trustee—Testamentary—Parties to accounting.
    Prior to the time for distribution, one of the beneficiaries died, leaving a will which contained no provision for a child bom after she made such will. Held, that such child had an interest in the estate, and that it and the representative of the deceased beneficiary were proper parties to an accounting by the trustee.
    Appeal from an order of the surrogate of the county of New York, making the executor of Elsie S. Murphy (formerly Elsie Smith), a daughter of the testator and a beneficiary under his will, party to the voluntary accounting of said trustee, and appointing a special guardian for the infant daughter of said Elsie S- Murphv upon such accounting.
    Testator, by his will, directed a division of the residue between his wife and children, the principal not to be paid to the children until they should respectively arrive at the age of thirty. _ One of the daughters, Elsie S. Murphy, died leaving a will which contained no provision for her infant daughter, who was born after the will was executed.
    - William A. Boyd (Charles Donohue, of counsel), for app’lt; Frank D. Sturges, for resp’t Eugene H. Pomeroy, guardian ad litem.

   Per Curiam.

Upon the death of Elsie S. Murphy, the daughter of Edmund A. Smith and the mother of the infant respondent, an interest in the estate of the deceased Elsie S. Murphy became vested, in Elsie J. Murphy, the infant respondent. It is unnecessary for us to determine on this appeal just what interest this infant had in the property held by the appellant in trust. Whether representing her mother, or being entitled to inherit from her mother, she had an interest in the mother’s share of the property held in trust by the appellant, and as such was a proper party, although, perhaps, not a necessary party, to the proceeding for an accounting by the trustee. The judgment on that accounting will bind the infant; and as the executor, as personal representative of Elsie S. Murphy, is also a party to the proceeding, that judgment will also bind the estate of Elsie S. Murphy.

We think that the interests of all the parties to this proceeding can be settled in this proceeding, and that the order below was right, and should be affirmed, with ten dollars costs and disbursements to the respondent, to be paid by the trustee personally.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Newton E. Whiteside et al., App'lts, v. The Noyac Cottage Association, Resp't.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    Clubs—Action to enjoin forfeiture, when premature.
    Where a member of a club or association is given an opportunity for a hearing, by its board of managers before final action, an action to enjoin such action forfeiting the member’s membership cannot be maintained prior to the time set for such hearing, as he has not exhausted his remedies within such association or club.
    Appeal from judgment dismissing the complaint and vacating a preliminary injunction.

      Eugene D. Hawkins, for app'lts; William C. Reddy, for resp't.
   Per Curiam.

This action was brought to remove a cloud upon the title of the plaintiffs to certain lots owned by them as members of the defendant, claimed to have been caused by the lien of an assessment levied upon them under the by-laws of the defendant, and to enjoin defendant from forfeiting their rights as members by reason of their non-payment of such assessment. Upon the trial it was shown that the respondent, as a club, was incorporated under chapter 267 of the Laws of 1875 and its amendments, for social and recreative purposes, and that after incorporation it purchased a tract of about forty acres of land on Little Peconic bay, L. I., and proceeded to improve it, according to the terms of its prospectus, by laying it out in lots, groves, lawn tennis grounds, lakes and ponds, and erecting and maintaining there a club and clubhouse.

The plaintiffs purchased' some of these lots of land, received deeds therefor, and thereby became members of the defendant. By the express terms of the deeds, the plaintiffs were to have and to hold the premises “ subject to assessments by the managers of the said Noyac Cottage Association, to enable the said association, party of the first part, to meet deficiencies which may arise in defraying its current expenses for maintaining its public grounds, clubhouse, piers, beaches, streets or avenues, and other property, and in the payment of town, county and state taxes.” By the by-laws of the defendant, provision is made for the manner in which assessments shall be levied, and the mode of enforcement; such by-laws, in effect, providing that the board of managers may levy assessments on each member of the association who owns a lot, of such sum as represents his share of. the tax imposed by public authority for that year, and, in addition, “ may also, from ■ time to time, make assessments for other purposes upon the members of the association who are owners of lots as they shall deem necessary; but the amount of such assessments shall not exceed ten per cent of the value of his holding.” ,

Under date of June 19, 1891, the board of managers notified the plaintiffs and the other members of the association that, pursuant to a resolution adopted, an assessment of ten per cent, on the purchase price of lots was levied on the members, and accompanying such notice was an explanation, in which the attention of members was called to the fact “ that during our three years existence no assessments or dues have been exacted, but all taxes have been paid, and many improvements made on the grounds, all being paid by the treasurer out of personal funds.” The claim of plaintiffs and of others who take their position is that such assessment was illegal, exceeding the powers vested in the board of management, in that it was levied to pay, not alone for current expenses, but for permanent improvements, and that, with respect to the latter, the board of managers had no power to assess for such purposes. Having refused to pay such assessments, and ninety days having elapsed, the managers forwarded to plaintiffs a notice, containing a preamble and resolution adopted by them, - which recited the foregoing facts, and in the resolution stated:

“ Resolved, That pursuant to § 5, chapter 6, of the by-laws of this association, all the rights and membership of said Newton E. Whiteside, and all his right, title, and interest in the property of ■ this association, are hereby declared to cease and determine, and ■ revert to this association, unless said Newton E. Whiteside shall show sufficient cause to the contrary before this board, at the office of the secretary, No. 147 Nassau street, on the 28th day of December, 1891, at three P. M. o’clock on said day, at which time an opportunity shall be given him to be heard in the matter.”

Feeling aggrieved by such action of the board of managers, and without waiting for the time fixed in the notice for the hearing, the plaintiffs brought this action for the relief as stated. Applying the principles laid down in the case of Thomas v. Union, 121 N. Y., 50; 30 St. Rep., 563, and cases cited, we think that the disposition made by the learned trial judge was right. The appellants have not availed themselves of their right of hearing and defense within the corporation, i. e., before the managers, pursuant to notice, and the respondent has not deprived them of their rights of membership or property rights, nor is it to be assumed that it would illegally do so. Upon such facts appearing, no such case was presented as would justify the intervention of a court of equity, and the dismissal of the complaint and the vaeating of the preliminary injunction were, therefore, proper. For these reasons we think the judgment should be affirmed, with costs.

Van Brunt, P. J., and O’Brien, J., concur.


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    Newton E. Whiteside et al., App'lts, v. The Noyac Cottage Association, Resp't.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    1. Judgment—Failure to submit proposed findings.
    A denial of a motion to set aside a judgment made on the ground that appellant, through mistake or inadvertence, failed to submit proposed findings in time, is not reversible error, especially where all the questions sought to be raised can be presented on the exceptions to the decision.
    2. Same—Dismissal on the merits.
    The mere fact that the words “ on the merits,” appear in one of the recitals does not make the judgment one dismissing the complaint on the merits, where such words do not appear in the judgment itself.
    Appeal from order denying plaintiffs’ motion to vacate and set aside the judgment and resettle the decision, in order to submit a request to find and have the words “ on the merits ” stricken out.

      Eugene D. Hawkins, for app’lts; William C. Reddy, for resp't.
   Per Curiam.

The failure of appellants, through mistake or inadvertence, to submit proposed findings in time would not entitle them, as a matter of right, even though the trial judge had the power, to set aside the judgment; and, as the judge correctly held that all the questions sought to be raised could be presented upon exceptions to the decision on appeal from the judgment, no injury was done to appellants by a denial of the motion.

With respect to the second part of the motion, to have the words “on the merits” stricken out, it is sufficient to add that these words do not occur in the judgment, and their appearance as one of the recitals does not raise the same question as would have been presented had there been a judgment dismissing the complaint on the merits. We think, therefore, that the order appealed from should be, in all respects, affirmed, with ten dollars costs and disbursements.

Van Brunt, P. J., and O’Brien, J., concur.


author: Van Brunt, P. J.

text:
    Rebecca Babbitt, App'lt, v. David S. Brown et al., Resp'ts.

      (Supreme Court, General Term, First Department,

      Filed April 14, 1893.)

    1. Trade-mark—Descriptive words—Size and color of package.
    No trade-mark can be acquired in the words “trade-mark” or “best soap,” nor in the size or color of the wrappers.
    2. Same.
    Plaintiff's soap was marked “B. T. Babbitt. Trade-Mark, Best Soap,” and defendants’ “B. T. Butler’s, Trade-Mark, Best Soap.” They were of different sizes and shapes, and were each enclosed in orange-colored wrappers of about the same size, but of different general appearance, and having only the words “ Irade-mark ” and “ best soap ” in common. There-was no proof that anyone had been deceived into buying defendants’ soap for that of the plaintiff. Held, that no case for an injunction was made out.
    Appeal from a judgment dismissing the complaint in an action, to restrain the alleged infringement of a trade-mark.

      Robert Hunter McGrath, Jr., and Daniel G. Rollins, for app’lt; Rowland Cox, for resp’ts.
   Van Brunt, P. J.

This action was instituted to enjoin an alleged infringement of what is designated a “ trade-marlr,” and. for an accounting for profits and damages. The plaintiff is the successor of B. T. Babbitt, who for many years prior to his-death carried on the business of manufacturing soap in the city of New York, and during that period manufactured an article known as “ . T. Babbitt’s Best Soap.” This soap was prepared for sale in cushion-shaped cakes, upon one side of which was stamped, in large script letters, “ B. T. Babbitt.” Immediately below that, and in smaller full-faced capital letters, was the word “ Trade-Mark,” preceded by a device known as an “arrow ” pointing to the right, and followed by a like device pointing to the left. On the third line were the words “ Best Soap ” in large full-faced capital letters. Upon the opposite side of the cake were the words B. T. Babbitt, New York City.’’ These cakes were wrapped in an orange-colored wrapper, upon which appeared the same words, similarly arranged, but in larger letters. The defendants are manufacturing and selling soap made in cushion-shaped cakes of a somewhat different size and shape from the plaintiff’s. These cakes have stamped upon each face the words-“B. T. Butler’s,” occupying one line; on a second line the word “ Trade-Mark,” preceded and followed by a device known as an “arrow,” andón the third line the words “Best Soap;” and are wrapped in an orange-colored paper, of about the same size as that of the-plaintiff, but differing in general appearance, and the printing thereon being dissimilar, with the exception of the words, “ TradeMark, Best Soap.” No proof whatever was offered upon the trial that any person had been deceived into buying the soap of the defendants supposing it was that of the plaintiff.

Upon these facts we fail to see how it was possible to sustain an injunction against the defendants. In the case of Morgan v. Troxell, 89 N. Y., 292, it was expressly held that a party cannot acquire a trade-mark simply in the form and color of the package or the manner in which it is wrapped, and that mere general resemblance forms no ground for interference, as the products of dealers can be distinguished only by the brands, marks or names which may be put upon them, and these can be protected as trademarks only as far as they are new and comply with the other conditions necessary to constitute a trade-mark. When there is a simulation of a trade-mark, and the intent becomes a subject of inquiry, the form, color and general appearance of the packages may be material; but, to sustain an action, there must be an imitation of something that can legally be appropriated as a trade-mark. When we apply these rules to the case at bar, and it being conceded that no trade-mark can be acquired in the words “ Trade-Mark. Best Soap,” no matter what type they may be printed in, there seems to be nothing upon which to found a claim of an infringement of any trade-mark owned by the plaintiff. As already suggested, the cakes were of different size and different form, the only words in common upon them being the words “ Trade-Mark. Best Soap and these are the only words in common upon the wrapper. The only resemblance seems to be in the size and color of the wrappers, and in such size and color, as already suggested, the plaintiff cannot acquire a trademark. As was said in Richardson & Boynton Co. v. Richardson & Morgan Co., 27 St. Rep., 808.

“ In cases of this description, each contains features peculiar to> itself, and the right to relief depends rather on questions of fact than on questions of law. The rule which governs adjudications in respect to questions such as that presented by the case at bar is reasonably plain, and it is distinctly held that such a similarity of names as is likely to produce confusion in the minds of ordinary unsuspecting persons will be restrained. Therefore the question involved in this case is, was there such a similarity of names? We might indulge in speculation in reference to the likelihood of confusion arising from similarity of these names in the conduct of business, and that such similarity was calculated to deceive and impose upon the public, and upon the purchasers of goods of the character in which the parties to Jhis action were accustomed to deal But the most satisfactory evidence in reference to the results likely to follow from alleged similarity is evidence of actual cases in which such deception and imposition has occurred.”

Applying these suggestions to the case at bar, it appears that there is no proof that anybody has been deceived ; and we cannot see that there is any likelihood of anybody being deceived. Any acquaintance with the particular characteristics of the wrappers and form of the cakes of the plaintiff’s merchandise would at once detect the difference, if an attempt was made to impose upon purchasers the defendants’ merchandise. "We think the judgment should be affirmed," with costs.

O’Brien and Follett, JJ., concur.


author: Putnam, J.

text:
    Edward Boom, Resp't, v. William Reed, App'lt.

      (Supreme Court, General Term. Third Department,

      Filed May 9, 1893.)

    1. Physicians—Veterinaby surgeons.
    One who holds himself out -for employment as a veterinary surgeon must possess and exercise a reasonable degree of learning and skill, and must use reasonable and ordinary care and diligence in the exercise of his skill and the application of his knowledge.
    8. Same—Negligence.
    Plaintiff was employed to attend the horse of defendant, which he treated for inflammation of the bowels. In an action for the value of such services, the evidence of defendant tended to show that, at a time when the horse was verv ill, and was throwing himself, plaintiff left, saying he would call the next day, but never returned, and that defendant had to call another surgeon; that the horse was not suffering from the disease treated for, but liad impaction of the colon. Held, that on this evidence the court could properly find that plaintiff did not exercise a reasonable degree of skill in his treatment of the horse, and that he was guilty of negligence in leaving it as he did. o
    Appeal from judgment of the Albany county court, reversing a judgment of the city court in favor of defendant. n

      Thomas A. Murray, for app’lt; William A. Allen (W. S. Hevenor, of counsel), for resp’t.
   Putnam, J.

This action was in the court of Albany to recover for services rendered and medicines furnished by the plaintiff, as veterinary surgeon, in attending upon a sick horse of the defendant, and on account of which plaintiff claimed judgment for ten dollars.

The defendant admitted the employment of plaintiff, but denied that the services rendered and medicines furnished were of the value of ten dollars. He also alleged lack of knowledge, unskillful treatment and negligence of the plaintiff in the treatment of said horse, whereby said defendant was compelled to employ another veterinary surgeon, under whose skillful treatment the horse recovered.

On the trial the plaintiff was sworn as a witness, and testified as to his attendance upon and furnishing medicine for defendant’s horse, and as to the value of said services and medicine. He testified that he prescribed for inflammation of the bowels. On the part of the defendant, evidence was produced tending to show that the horse did not have inflammation of the bowels, for which the plaintiff treated him. That the last time plaintiff visited the horse he was no better, and that Boom was' informed of that fact. The horse was at that time throwing himself, getting up and throwing himself continuously ; that one could hear him out on the sidewalk, and people complained of the noise; that defendant kept a man in attendance upon him; that the animal being in this condition, plaintiff left, agreeing to call again the next day very early, but; in fact, he never came; that plaintiff’s last call was on Monday, and on Tuesday night defendant called in another veterinary surgeon.

The rule is well established that this court will not interfere with the findings of a justice on a question of fact, unless made with such an obvious disregard of the weight of evidence as to create a conviction that it must have proceeded from passion, prejudice, corruption or palpable mistake. Tracy v. Hartman, 1 Hilton, 350; Conklin v. Thompson, 29 Barb., 218.

Therefore the city judge, on the evidence in this case, was at liberty to find as facts what the evidence produced by the defendant as aforesaid tended to show.

Doubtless the same rules are applicable to the case of a veterinary surgeon bringing an action to recover for the value of his services as has been held applicable to other physicians and surgeons. He must possess and exercise a reasonable degree of learning and skill. He must use reasonable and ordinary care and diligence in the exercise of his skill and the application of his knowledge. Carpenter v. Blalce, 10 Hun, 358; Hathorn v. Richmond, 48 Vt., 557.

I think on the evidence in this case the city court could properly find want of care and diligence on the part of the plaintiff in treating defendant’s horse; in fact, great negligence. The evidence produced by defendant, which the trial judge had the right to believe, showed that plaintiff being called to treat the animal and having undertaken its cure, on the day of his last visit, the horse at that time being very ill, agreed to call the next morning early, but neglected to ever call again. I think the action of the plaintiff in leaving the animal he had assumed to take charge of in such a dangerous condition, and failing again to call according to his promise, was such clear negligence as justified the judgment rendered by the trial court. See Williams v. Gilman, 71 Me., 21; Ballou v. Prescott, 64 id., 308.

I am of the opinion, also, that the city court, on the evidence, «could properly determine that defendant’s horse was suffering from an “ impaction of the colon,” instead of inflammation of the bowels, and therefore that the plaintiff, who prescribed for the latter disease, did not exercise a reasonable degree of skill in his treatment of the horse.

The questions in the case were of fact. There was evidence tending to sustain the judgment of the trial court. I think the judgment directed by him on that evidence should not have been disturbed.

It follows that the judgment of the county court should be reversed and that of the city court affirmed, with costs in the county court and in this court.

Mayham, P. J., and Herrick, J., concur.


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    Byron H. Sykes, Resp't, v. Abram Temple, App'lt.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    1. Bills and notes—Agreement to become principal.
    Plaintiff "was an accommodation indorser on a note signed by one F., as agent, and was obliged to take up the same. In an action thereon plaintiff testified that at the time of the indorsement defendant said he was the principal thereon. It appeared that the note was made to raise money to enable F. to purchase the interest of his partner in a business; that defendant was trying to assist him, and to secure it against F.’s creditors agreed to become principal in the business, with F. as agent, and the bill of sale was made to him. Held, that a finding that defendant was also the principal on the note was correct.
    3. Same—Evidence.
    The admission in such case of evidence that defendant paid similar notes made by F. as agent subsequently, is proper for the purpose of showing that defendant carried on the business, and that the transfer was not colorable.
    Appeal from judgment in favor of plaintiff, entered upon the report óf a referee.
    Action to recover moneys which plaintiff was compelled to pay as indorser of a note signed by F. W. Fogg in the name of “ A. L. Fogg, agent,” and as to which plaintiff claimed that defendant was the principal or maker.
    The following is the opinion of the referee:
    J. W. Houghton, Referee.—The plaintiff sues defendant for the amount paid by him as accommodation indorser of a note of $3,600, signed “A. L. Fogg, Agt.”
    The issue is, whether defendant was the maker or principal of said note. It is undisputed that F. W. Fogg, the husband of A. L. Fogg, had for a number of years done business either in his own name as agent or in that of A. L. Fogg, and that at the time of the making of the note in question he was a sharer in the profits with one Getty, who, however, owned the entire stock of goods. Fogg was desirous of making some different arrangement and of obtaining some person to buy Getty out or indorse a note for that purpose. Overtures were made by him to a number of his customers and friends to indorse a note to the amount of $4,-000 to make such purchase and give him some surplus to start anew. Fogg seems to have had a remarkable faculty of getting help and the scheme was on the point of being perfected, when, as it is claimed by plaintiff, the plan was changed because of feared embarrassment from old debts of Fogg, and the defendant became principal in the purchase and business.
    It is conceded that the defendant did take a bill of sale from Getty of the goods valued at $3,400, and executed to Fogg a power of attorney to transact the business, which was conducted for two years or more, at which time defendant found himself indebted for purchases by Fogg to the amount of several thousand dollars, whereupon he sold the remaining stock and paid the business creditors.
    Defendant was one of the nine or ten men who had consented to indorse the note in question, but instead of indorsing, lie put into the bank to the credit of “A. L. Fogg, Agent,” his own note for $400, and eight others, including plaintiff, indorsed the note signed “A. L. Fogg, Agent.” As the witnesses and evidence were produced upon the trial I was impressed with the idea that defendant in fact became principal of the note in suit,, and a careful perusal of the evidence, after an unusually long interval, has confirmed me in'that view.
    The reasons why he did- that are more difficult to conjecture, unless he imagined he would have greater control over the business and thus be in better position to protect himself from loss. He seems to have failed to carry out these intentions if that was his reason, for the reckless manner, to use a mild term, of Fogg’s conduct of the business received no check from him until matters became ruinously involved.
    The assuming of the position of principal occurred in the midst of negotiations of Fogg for raising the $4,000, and defendant's own evidence in some respects corroborates the plaintiff’s contention.
    I cannot come to any other conclusion than that the note was indorsed by some, at least, of the indorsers before it was signed upon its face.

      The evidence of some of the indorsers shows them to have beeon unaccustomed to lending their names in that manner, and the occurrence was one which impressed it upon their minds.
    They are positive that no maker’s name appeared upon the face of the note when they indorsed, and in this respect corroborate Fogg, who does not commend himself by the management of his trust, but who, nevertheless, may tell the truth.
    Defendant, at the time of the signing of the note, took title to the stock of goods, and §3,400 of the proceeds went to pay Getty for it, and $200, together with his own $400, went to the credit in the bank of “A. L. Fogg, Agent,” whom he concedes was his duly accredited agent.
    The deposit belonged to defendant as well as the stock of goods. If his contention is true, the day after the transfer he •could have stopped the business and presumably sold at the price paid for the stock, and been at least $3,600 ahead, not counting his own note of $400.
    I think the circumstances all show that defendant assumed the position that plaintiff claims he did, and that he became principal of the note as well as of the business.
    I have reached this conclusion with reluctance, because of the hardship which it imposes upon defendant, who has already suffered great loss by his attempted accommodation of Fogg. It is an unfortunate position, which defendant might, however, have saved himself from by greater diligence.

      Potter & Lillie (J. Sanford Potter, of counsel), for app’lt; Jurden E. Seeley, for resp’t.
   Per Curiam.

We are satisfied, after a careful examination of the evidence, that the conclusion reached by the referee on the question of fact presented to him cannot be disturbed.

Plaintiff testified that before indorsing the note described in the complaint defendant said he was the principal on the note and the rest were to indorse it. The referee believed this statement, as he had the right to do. The conceded facts of the case tend to show -the truth of plaintiff’s testimony. The note was given for the purchase price of a stock of goods transferred by Getty to defendant, and which goods were used in the business that defendant concedes he afterwards carried on as principal.

It was, therefore, probable that the note made to pay for the goods so transferred to defendant was made by him. It follows , that the judgment should be affirmed on the opinion of the referee unless some exception taken on the trial requires a reversal.

It is claimed that the referee erred in receiving testimony showing that defendant subsequent to the giving of the note in question paid other notes similarly signed “ A. L. Fogg, Agent” That •evidence of such similar transactions, they being subsequent to said note, should not have been received.

The question in the case was whether the note signed “ A. L. Fogg, .Agent,” on which defendant was sought to be charged, was ■or was not defendant’s note. As bearing on that disputed question it was not improper to receive evidence showing that the consideration of the note was a stock of goods sold to defendant, and that such transfer was actual and not colorable. To that end it was competent to show that defendant after his purchase of said stock of goods, through Fogg, conducted the business and paid debts contracted by the latter.

The payment by defendant of notes and accounts contracted by “A. L. Fogg, agent," tended to show that defendant carried on the business, and hence that his purchase of the goods was actual and not colorable, and this fact rendered it probable that the note given for the purchase price of the goods was his. But the fact of the payment of subsequent notes made by “A. L. Fogg, agent, and defendant’s liability thereon, was conceded on the trial. The defendant testified, omitting such portions of his testimony as were objected to, as follows, viz.: “ I consented to become the principal in the business, and from that time until I sold out the store I was principal. * * * Fogg carried on the business, I being the principal, for about two years, and during that time Fogg incurred liabilities for gopds. * * * In the name of A. L. Fogg, agent * * * * I supposed I was liable for them. These liabilities were part in notes signed A. L. Fogg, agent,’ and part in accounts that he had incurred in that time.’’ Thus the fact of the liability of the defendant upon subsequent notes was conceded on the trial, and the reception of the evidence objected to by defendant could produce no injury to him.

It is also claimed that the referee erred in overruling objections to testimony of the witness Baker as to conversations with Temple and Goodman. We think the testimony of the witness - as to conversations with Temple properly received as tending to impeach Temple. The conversation with Goodman detailed by the witness only related to the undisputed fact of the agreement that defendant should be principal of the store, and as to the bill of sale being made- to him. Hence, the error, if any, was not material and is not a ground for reversal. Wright v. Reusens, 133 N. Y., 306; 45 St. Rep., 183.

The judgment should be affirmed, with costs.

Herrick, J., concurs.


text:
    George Mark, Resp't, v. The Village of West Troy, App'lt.

      (Supreme Court. General Term, Third Department,

      Filed May 9, 1893.)

    1. Villages—Presentation of claim.
    Presentation of a bill to the chamberlain and president of a village is not sufficient to entitle the holder to maintain an action against the village thereon, where its charter requires a formal presentation to the board of trustees.
    2. Same—Employment of counsel.
    Where the charter of the village expressly provides that no officer shall contract any debt on its part unless specially authorized by the board of trustees, it is not sufficient, in an action for services as counsel, to show an employment by the attorney for the village or its president; but the plaintiff is bound to establish such special authority from the board in order to maintain his action.

      Appeal from judgment in favor of plaintiff, entered upon report of a referee.
    Action to recover for services performed by plaintiff’s assignor, Galen E. Hitt, as counsel for defendant in two actions. Said Hitt testified that he rendered the services at the request of the attorney of record and of the president of the village.

      Eugene McLean, for app'lt; Galen R. Hitt, for resp't.
   Putnam, J.

We regret that we are unable to agree with the views adopted by the referee in this case. Plaintiff’s assignor performed meritorious and valuable services in actions where defendant was a party, and should receive compensation therefor.

But the claim on which the action is brought was not shown to have ever been presented as required by defendant’s charter. Chapter 52, Laws of 1879, §§ 28 and 29, amending §§ 32, 33 of the charter. The act requires that a bill shall be made out in items and verified and formally presented to the hoard oj trustees before an action can be maintained. It must be presented at a regular or stated meeting. The only proof of presentation of the bill was to one Hart, chamberlain, and Holsapple, president of defendant. That was not a presentation to defendant's trustees required by the charter as a prequisite to an action. The formal presentation to the defendant’s trustees should have been alleged in the bill and proved upon the trial.

Again, plaintiff failed to show the retainer of his assignor by defendant. An attorney, as such, has' no authority to employ counsel. Matter of Bleakley, 5 Paige, 313, 314. Again, the charter of defendant expressly provides, § 32 amending § 37, that no officer of the village, or any other person, shall contract any debt on the part of the village unless specially authorized by the board of trustees so to do, ancj hence the president of defendant could not retain Mr. Hitt. The plaintiff, as part of his case, was bound to show an employment of Mr. Hitt in pursuance of the provisions of the charter, which he failed to do, and hence, we think, the court erred in not granting the motion for nonsuit.

This case is not like that of Moore v Mayor, 73 N. Y., 238, and kindred cases, where a party, in good faith enters into a contract with public officers within their power to make, and performs, in which ease the officers are estopped from alleging the irregularity of their action to the prejudice of the party who so performed. Those eases do not apply if there is a statutory prohibition of power unless exercised in the regular way. Clute v. Robison, 38 Hun, 284.

In this case there was a prohibition in the charter of defendant which prevented the president or attorney from retaining Mr. Hitt unless specially authorized by the board of trustees. It was incumbent on plaintiff to establish this special authority to maintain his action.

Downing v. Rugar, 21 Wend., 178, and Hills v. Peekskill Bank, 26 Hun, 161, cited by respondent, are not similar to this. Those were cases where public officers, consisting of two or three, assumed to act in the name of all, or of a majority, and it was assumed that all the officers acted, or were duly notified of the meeting where action was had. In this case it was not shown that the trustees of defendant ever acted, or assumed to act, in the matter of retaining Mr. Hitt. If it had appeared that a special meeting of defendants trustees had been called in the matter of retaining Mr. Hitt as counsel, and that a mere quorum had attended who passed a resolution to employ him, it would probably be assumed that those trustees who did not attend had been notified of the meeting.

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

Matham, P. J, concurs.


text:
    Nicholas Sauerborn, Ad'mr, Resp't, v. The New York Central & Hudson River Railroad Co, App'lt.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    1. Negligence—Contributory.
    It is only where it clearly appears from all the circumstances, or is proved by uncontroverted evidence, that the party injured has, by his own acts or neglect, contributed to the injury, that the court can take the case from the jury.
    2. Same—Railroad crossing.
    While plaintiff’s intestate was riding with one Hiss Brown, and as they were crossing defendant’s tracks, their wagon was struck by a train and demolished and intestate killed. There was evidence tending to show that they both looked for trains, stopping twice and listening, and that there were trains on track's three and four which obstructed their view. Held, not a case which could be taken from the jury on the ground of contributory negligence.
    3. Same—Failure to give signals
    A railroad company sued for death alleggd to be caused by its negligence is not entitled to have the jury instructed as a legal proposition that the failure of defendant to ring the bell or blow the whistle when approaching a crossing would not constitute a wrong or negligence on its part; whether it would or not is a question of fact for the jury.
    Appeal from judgment in favor of plaintiff for $4,178.71, damages and costs, entered upon verdict, and from order denying motion for a new trial on the minutes.
    Action to recover the damages sustained by the next of kin of Kate M. Sauerborn from her death, alleged to have been caused by defendant’s negligence.
    The deceased was riding with her cousin, Kate Brown, and as they approached the. crossing over defendant’s tracks Miss Brown stopped the horse twice and both looked and listened for approaching trains. There were freight trains on tracks three and four, which obstructed their view. They then drove on, when a passenger train on track two struck the wagon, demolishing it and throwing Miss Brown between the tracks, while intestate was thrown on track three, where she was run over and killed by the freight train on that track.

      S. W. Jackson, for app'lts; Daniel Naylon, Jr. (Alonzo P. Strong, of counsel), for resp't.
   Putnam, J.

The legal questions involved in this case have "been so often considered that we deem an extended discussion unnecessary.

The appellant contends that the judgment cannot be sustained because plaintiff failed to show the absence of contributory negligence on the part of the deceased, and also because of certain exceptions to the chal’ge of the trial judge and his refusal to charge.

It is well settled that it is only in exceptional cases that a non-suit can be granted on account of the contributory negligence of the party injured. It is only where it clearly appears from all the circumstances, or is proved by uncontroverted evidence,that the party injured has, by his own acts or neglect, contributed to the injury, that the court can take the case from the jury. Massoth v. D. & H. C. Co., 64 N.Y., 529.

We have carefully examined and considered the testimony in the case and are of opinion that this was not one of those exceptional instances where the trial judge could properly have withdrawn the question as to the contributory negligence of deceased from the jury.

There was evidence tending to show that Miss Brown and deceased when approaching the track where the accident occurred exercised unusual care, stopping twice, listening and looking up to the time the wagon wheels reached the track; also, there were freight trains on tracks three and four, one going east and the other west, which obstructed the view easterly. This testimony in connection with other evidence in the case rendered it probable that deceased was not guilty of negligence in failing to observe the passenger train on track No. 2, which caused her death.

The question was not whether the deceased could have seen said passenger train, but whether under the circumstances she was negligent in not seeing it ? Greany v. L. I. R. R. Co., 101 N. Y., 424-25.

After they reached the railroad tracks it cannot be deemed us matter of law negligence on the part of Miss Brown to attend to her horse while driving over them. Moore v. N. Y. C. & H. R. R. R. Co., 49 St. Rep., 516-20. Besides the evidence indicated that while they were so crossing deceased was looking for approaching trains.

It is claimed that the court erred in charging the jury that deceased was not responsible for the same degree of care as was Miss Brown, because she was a guest. The charge in this regard we think correct. The judge said: “Here was a four-track road,

and it behooved them to take extraordinary pains to prevent being on the track at the time when a train was going along, and thus prevent a collision. Miss Sauerborn had the duty imposed upon her to aid her companion in all ways a person riding in a vehicle should do, by looking and by suggestion, and by assistance to prevent any injury to either of them by a collision with a train.” The instructions given as a whole were unobjectionable. See McCaffrey v. D. & H. C. Co., 41 St Rep., 223.

The charge in regard to defendant’s failing to ring the bell or blow a whistle was not erroneous. The jury were instructed that as a matter of law it was not negligence to omit these signals. It was submitted to the jury as a question of fact whether, under all the circumstances of the case, such signals should have been given by the defendant.

The defendant was not, we think, entitled to have the jury instructed, as a legal proposition, that the failure of the defendant to ring the bell or blow a whistle when approaching the crossing where deceased was killed would not constitute a wrong or negligence of the defendant. Whether it would or not was a question of fact for the jury.

The judgment should be affirmed, with costs.

Mayham, P. J., and Herrick, J., concur.


author: Mayham, P. J.

text:
    The People ex rel. The Edison Electric Illuminating Co. v. Edward Wemple, Comptroller.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    Taxes—Corporations—Voluntary payment— Certiorari.
    Relator, in the years 1886, 1887 and 1888, filed reports with the comptroller, and paid the tax assessed by him. Thereafter it was determined by the court of appeals that relator was a manufacturing company, and exempt from tax. Relator then applied to the comptroller for a resettle, ment and revision of the taxes so paid, which was denied. Held, that the payment being a voluntary one, with knowledge of the facts, and without fraud, coercion or duress, a certiorari to review such action of the comptroller, being in the nature of a proceeding to recover back the money, could not be maintained.
    Certiorari to review the determination of the comptroller in denying application for a revision of certain taxes.

      Eaton & Lewis (W. Laird Goldsborough, of counsel), for relator; S. W. Rosendale, att'y-gen. (John W. Hogan, of counsel), for resp’t.
   Mayham, P. J.

This matter comes before this court upon the return to a writ of certiorari granted to review the determination of the comptroller, denying the application made by the relator for the revision and resettlement of a tax.

The relator is a domestic corporation organized under chapter 37 of the Laws of 1848, entitled “ An act to authorize the formation of gas light companies,” and the various acts of the legislature amendatory thereof.

The taxes sought to be reviewed were imposed by the comptroller for the years 1886, 1887 and 1888.

The tax assessed for 1886 was paid by the relator into the state treasury in 1887, and that for 1887 was in like manner paid in 1888, and that for 1888 was paid in 1889.

These taxes were all based upon the report which the relator made to the comptroller each year, and were paid without objection by the relator.

On the 8th of July, 1890, the relator made an application to the comptroller for a re-settlement and revision of these taxes, and accompanied the same by affidavits in support of such application. Affidavits were also filed in opposition to such revision on the part of the state, and on the 26th of November, 1890, the comptroller made an order denying such revision and readjustment, and for such denial and refusal the relator on the 7th day of January, 1891, sued out this writ.

The question whether a tax such as was levied and paid in this case is a legal and valid tax lawfully levied and assessed by the comptroller is no longer an open one, as the court of appeals in the case of the People ex rel. The Edison Electric Illuminating Co., 129 N. Y., 664; 42 St. Rep., 280, expressly held that such company was a manufacturing company, and as such exempt from this tax under § 3 of chapter 542 of the Laws of 1880.

The opinion in this case was announced January 20, 1892, reversing the decision of the general term of the supreme court, announced in July, 1891, wherein it was held that the relator was not entitled to exemption from tax as a manufacturing corporation, so that at the time of the comptroller’s refusal to readjust this tax the decisions of this court had declared the relator subject to the tax, and the comptroller would seem at that time to have been bound by that decision, and it is insisted by the defendant that a succeeding comptroller would not be authorized to revise or review the determination of the former comptroller upon application for revision. People ex rel. American Surety Co v. Campbell, 64 Hun, 417; 46 St. Rep., 228.

But the main contention on the part of the defendant is that the payment of this tax into the state treasury was a voluntary payment by the relator of a tax assessed by the comptroller upon a report voluntarily made to him by the relator, and that the relator is, therefore, estopped by its own voluntary acts from asking a readjustment and revision of this tax by the comptroller.

In answer to this contention it is urged by, the relator that § 19 added to chapter 542 of the Laws of 1880 by chapter 463 of Laws of 1889, provides that “ the comptroller may at any time revise and readjust any account thereof settled against any *" * corporation * * * by himself or any preceding comptroller for taxes arising under this act, whenever it shall be made to appear by evidence submitted to him that the same has been illegally paid or so made as to include taxes which could not have been lawfully demanded.”

Does this section and the adjudication, under it authorize and require the comptroller to resettle and revise a tax assessed by the comptroller upon the report of a corporation voluntarily made and filed by it in the comptroller’s officó and the tax upon which has been voluntarily and without objection paid into the state treasury ?

This question has not been answered by any adjudication to which our attention has been called. The principal point discussed and decided in the case of People ex rel. Dredging Company v. Wemple, 60 Hun, 225; 38 St. Rep., 17, was as to whether the limitation as to the time of applying for revision imposed by § 17 of chapter 501 of Laws of 1885 was modified by § 19 and § 20 of chapter 463 of the Laws of 1889, and the court held that it was so modified and enlarged.

But the precise question raised in this case was not involved in that determination, nor was it raised or determined in People ex rel. Illuminating Co. v. Wemple, Comptroller, 129 N. Y., 665; 42 St. Rep., 280, to which we are referred by the relator.

In that case the relator had made no report for the years for which the tax was imposed and the comptroller caused an investigation into its affairs, and on such investigation settled an account against it for taxes and penalties which the relator paid into the treasury without any warrant being issued for its collection, and thereupon applied to the comptroller for a revision, which was refused, and the relator then sued out a certiorari.

The payment of the tax in that case was a necessary prerequisite to the granting of the certiorari,. and the payment of the tax under such circumstances could not be regarded as a voluntary payment.

The tax was assessed without the relator’s report or consent and was paid not as an evidence of any acquiescence in its imposition, but for the purpose of enabling the relator to review and reverse the action of the comptroller on certiorari. What was said, therefore, by the court of appeals in 133 N. Y., 618; 44 St. Rep., 871, must be understood as relating to the facts of that case, as it was then before the court only on motion to amend the remittitur so as to give effect to the decision of the court as reported in 129 N. Y., 665; 42 St. Rep., 280.

We are, therefore, to consider the effect of the relator’s voluntary report to the comptroller and payment of this tax to the state treasury, without objection, unaided by any decision of this court or the court of appeals on that subject. The petition asks that the taxes assessed upon the relator’s report and paid by the. relator be set aside.

The granting of that relief, as this money was paid into the state treasury, would in effect make the state the debtor of the relator, and while the court would be without authority to direct its re-imbursement and the comptroller would have no power to pay back the money, People ex rel. Illuminating Co. v. Wemple, 133 N. Y., 617; 44 St. Rep., 871, supra, it would become the duty of the"comptroller to credit the relator in account with the money so paid, as provided by added § 19 of chapter 542 of the Laws of 1880, as amended by chapter 463 of the Laws of 1889, and thus a duty would be imposed upon the legislature to provide by law for payment to the relator out of the state treasury the amount of such tax.

This would be a circuitous method of allowing the relator to recover back from the state money voluntarily paid by it into the state treasury.

I do not think that chapter 463 of the Laws of 1889, amending chapter 542 of the Laws of 1880, capable of that construction. Section 2 of that amendatory act, in substance if not in terms, seems to forbid that construction.

As we have seen, this payment by the relator was clearly a voluntary payment. The payment was made by the relator with a full knowledge of all the facts.

The relator assumed that it was its duty to make a report to the comptroller, and voluntarily made such report, and as that report assumed the relator’s liability to pay a tax as a corporation, the comptroller imposed the tax in accordance with, and in pursuance of, the report, and the relator voluntarily paid the same. If the tax thus voluntarily paid by the relator was not authorized by law, then its payment by the relator was under a mistake of law, and not of fact, and the law under such circumstances will not aid the relator in recovering it back, even though the assessment was upon property not subject to taxation, and therefore illegal.

The report to the comptroller gave him jurisdiction both of the relator and subject-matter, and facts not disclosed by the report which might render the relator non-taxable would not necessarily render the assessment void.

The rule of law in relation to voluntary payment of taxes is the same as that in other cases of voluntary payment, and when a tax is voluntarily paid by a party without any duress' or compulsion, the money cannot be recovered back, even though the person paying the same with a full knowledge of the facts believes that he is legally bound to pay the same. Such mistake of law furnishes him no ground for relief.

Upon this subject Judge Cooley, in his work on taxation, uses this explicit language: “Every man is supposed to know the law, and if he voluntarily makes a payment which the law will not compel him to make, he cannot afterwards assign his ignorance of the law as the reason why the state should furnish him legal remedies to recover it back; especially is this the case when the officer receiving the money, who is chargeable with no more knowledge of the law than the party making payment, is not put on his guard by any warning or protest, and the money is paid over to the use of the public in apparent acquiescence in the justice of the exaction.” And the learned author adds: “The rule of law is a rule of public policy also; it is a rule of quiet as well as of good faith, and precludes the courts being occupied in undoing the arrangements of parties which they have voluntarily made and into which they have not been drawn by fraud or accident, or by an excusable ignorance of their legal rights and liabilities,” Cooley on Taxation, 567.

In Bailey v. Buell, 50 N. Y., 662, the plaintiff sued the assessor for damages for an illegal assessment, he being a non-resident. He paid the tax, however, on being served with an order of the county judge in proceedings under chapter 561 of Laws of 1867, directing him to pay or execution would issue. Held that the order of the county judge was void, and that the payment was, therefore, not compulsory, or made under legal duress, but was voluntary, and that the plaintiff could not recover.

In. Phelps v. Mayor, etc., of N.Y., 112 N.Y., 216; 20 St. Rep., 238, it was held that when an ordinance directing a local improvement in the city is on - its face illegal and. void, the payment of an assessment without coercion for the expense incurred under its authority is a mistake of law, and therefore a voluntary payment, and the sum paid cannot be recovered back

In this case Gray, J., says: “ She was under no compulsion to pay the assessment; for there was concededly no duress of person or goods, and the payment was not forced by warrant or seizure. We do not understand that the rule goes further in its authority to permit of a recovery back of moneys paid by a person under a tax or assessment than in a case where, its payment being compelled by an actual or threatened seizure of his person, or divestiture of his goods, he asserts by action and successfully maintains its illegality.”

In Redmond et al. v. Mayor, etc., of New York, 125 N. Y., 636; 35 St. Rep., 917, Gray, J. , in discussing this question, says : “ The long established and well recognized rule on the subject of voluntary payments is that when made with knowledge of the facts, and not induced by the fraud of the other party, they are beyond recall in law.” Brisbane v Dacres, 5 Taunton, 143; Silliman v. Wing, 7 Hill, 159; Preston v. Boston, 12 Pick, 14; Peyser v. Mayor, 70 N. Y., 497; Phelps v. Mayor, 112 id., 216; 20 St. Rep. 238.

Within all the authorities we think the payment of this tax was a voluntary payment by the relator, with full knowledge of the facts, without fraud on the part of the comptroller or other officers of the state, and without coercion or duress, and as these proceedings by certiorari are in the nature of proceedings to recover back the money thus voluntarily paid, they cannot thus be maintained.

The decision of the comptroller refusing to resettle this tax is confirmed, and the certiorari quashed, with fifty dollars costs and printing disbursements.

Putnam and Herrick, JJ., concur.


author: Mayham, P. J. Putnam, J.

text:
    Alpheus Winchell, App'lt, v. The Argus Company, Resp't.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    Libel—Words actionable per se.
    Words published in -writing or print which tend to diminish the respectability of a person and expose him to disgrace, ridicule and obloquy are libelous and actionable without alleging or proving special damages. It is not necessary that they should impute a crime.
    Appeal from judgment dismissing the complaint.

      Egbert Price, for app’lt; John A. Delehanty, for resp’t.
   Mayham, P. J.

This is an appeal from a judgment entered upon the order of the trial judge, dismissing the plaintiff’s complaint at the trial, on the ground that it does not state facts sufficient to constitute a cause of action.

The action is for libel, and the complaint charged that the defendant published in the “ Argus," a newspaper printed in Albany, the following alleged libelous words of and concerning him. “A lazy brute; lives in idleness and lets his family starve."

“ Saratoga Springs, February 19.

“E. D. Selden, Superintendent of the Saratoga Humane Society, is investigating charges made against Alpheus Winchell (meaning plaintiff), of North Milton, who resides on the farm of his father-in-law, Henry Traver of Milton. Winchell (meaning plaintiff), is an indolent fellow and last summer did not raise any grain or vegetables on his (meaning plainti ff’s) farm, nor cut any hay, and consequently this winter his family (meaning plaintiff’s family) of a wife and six children are suffering for food, and his horses, cattle and swine (meaning plaintiff’s horses, cattle and swine), are not properly fed,” by which false, scandalous and defamatory words the defendant meant and was understood to mean that the plaintiff was lazy and would not work, and that plaintiff did not provide necessary food for his family and was guilty of the crime of being a disorderly person, and also that plaintiff did not provide necessary food for his horses, cattle and swine, and that, he was guilty of the crime of cruelty "to animals.

Y. That said libel also contained in another part thereof the several other false, scandalous, malicious and defamatory words and matter following, of and concerning "the plaintiff, that is to say :

“After his neighbors (meaning plaintiff’s neighbors) had contributed from their stock of hay, etc., either willingly or unwillingly, they (meaning plaintiff’s neighbors) locked their barns and granaries against him (meaning plaintiff) • and entered complaint to superintendent Selden, who found on driving out to Winchell’s place (meaning plaintiff’s place) that the complaints were in no sense exaggerated,” by which false, scandalous and defamatory words the defendant meant and was understood to mean that plaintiff was a thief, and also that plaintiff was guilty of the crime of larceny, and that plaintiff had taken hay, etc., from his said neighbors without their consent.

YI. That said libel also contained in another part thereof the several other false, scandalous, malicious and defamatory words and matter following, of and concerning the plaintiff, that is to say:

“ He (meaning superintendent Selden) has brought the matter to the attention of police justice Burnham, of Milton, at Ballston Spa. One of the farmer’s wives residing in the vicinity (meaning the vicinity of plaintiff’s place) told Mr. Selden that recently wishing to contribute to the necessities of the Winchell children, (meaning plaintiff’s children) she (meaning the neighbor’s wife) carried some provisions to his house (meaning plaintiff’s house), and just as she was about to divide it among them (meaning the children) the unnatural father (meaning plaintiff) came into the house and saying: that is good,’ picked up and devoured the food in her presence,” by which false, scandalous and defamatory words the defendant meant, and was understood to mean, that plaintiff had been charged before Police Justice Burnham of Milton, at Ballston Spa, by superintendent Selden with the crime of being a disorderly person, and also with the crime of cruelty to animals, and also with the crime of cruelty to children ; and by which false, scandalous and defamatory words the defendant meant, and was understood tornean, that plaintiff not only failed and neglected to provide for his children according to his means and ability, but that he also devoured the food that had been furnished his said children by the neighbors of the plaintiff, and thereby accusing the plaintiff of “ the crime of being a disorderly person and also of the crime of cruelty to children.”

The complaint concluded with the allegation that by reason of the publication of such words he was brought into disgrace and disrepute among his neighbors, and claimed damages.

The answer admits the publication of the alleged libelous words set out in the complaint,but avers that such publication was without intending to prejudice or injure the plaintiff in his alleged character and reputation, and without malice towards the plaintiff.

It is quite clear that this complaint did not charge the publication by the defendant of words which, if uttered orally and not printed or published, would- have been actionable per se; and if, as insisted by the learned counsel for the respondent, there is no difference as to the actionable character of words, whether spoken or written, then the complaint was properly dismissed.

At common law there was a marked and well understood distinction between oral slander and libel.

In the former the words to be actionable per se must charge the commission of a crime involving moral turpitude and subjecting the party to ignominious punishment

In the latter, words were actionable if they expose the person of whom they are published to hatred, ridicule and contempt, without imputing to him any crime.

In Cropp v. Tilney, 3 Salk., 226, Lord Holt, Ch. J., said “ that scandalous words were not necessary to make a libel; that it was enough if the defendant caused an ill opinion to be had of the plaintiff or made him contemptible and ridiculous.” In Villers v. Monsley, 2 Wils., 403, the doctrine was laid down “ that publishing anything concerning another which renders him ridiculous, or tends to hinder mankind from associating or having intercourse with him, is actionable.” This doctrine is laid down by Starkie on Slander as illustrating the elementary rule, Folkard’s Starkie on Slander, Wood’s Notes, 230, and the learned author adds: “ and, therefore, to publish, in writing, of another, that he is a rogue, rascal, swindler or villain, is actionable, although the terms would not be actionable had they been merely spoken.”

In Thorley v. Lord Kerry, 4 Taunton, 355, the libel charged the plaintiff with being a hypocrite and having used the cloak of religion for unworthy purposes, and the plaintiff recovered a verdict for the libel in the king’s bench. On appeal to the exchequer chamber, Sir J. Mansfield, Oh. J., in affirming the judgment, said: Though the words impute no punishable crime, they contain that sort of imputation which is calculated to vilify a man, and bring him, as the books say, into hatred, contempt and ridicule; for all words of that description the action lies.” In Archbishop Tuam v. Robeson, 5 Bing., 17, Best, Ch. J., says: “ According to that case (Lord Kerry v. Thorley, supra), in order to support an action for oral slander something criminal must be imputed, but in libel any tendency to bring a party into contempt or ridicule is actionable, and, in general, any charge of immoral conduct, although in matters not punishable at law.”

The same rule has been adopted in this country. In Thomas v. Croswell, 7 Johns., 264, it was held to be libelous to publish of a member of congress that he is “a fawning sycophant, a misrepresentative in congress, anda groveling office seeker; he has abandoned his post in congress in pursuit of office.” While these words did not charge or impute to the plaintiff the commission of a crime, it was held that they were properly submitted to the jury, who were left to pass upon the question as to whether the words published tended to bring the plaintiff into contempt and ridicule, and the jury having found for the plaintiff, their verdict was sustained on appeal.

In Cramer v. Riggs, 17 Wend., 210, Nelson, Ch. J., in discussing the character of the words claimed to be libelous, uses this language: “ There is no doubt that the allegation in the libel, if published in the shape of mere oral slander, would not per se be actionable; they impute no indictable offense; but if they tend to expose the character of the plaintiff to ridicule and comtempt of the community, whether they impute a punishable offense or not, they are actionable when put forth in the shape of a written or printed slander.”

In Moore v. Bennett, 48 N. Y., 472, the libel was contained in a letter published in the New York Herald, which, after describing a woman as a prostitute, adds : “ She is, I understand, under the patronage or protection of a Mr. Moore, agent of the Central Railroad, who has also employed the orderly of my late husband.”

The plaintiff in this case was non-suited at the trial on the ground that the complaint did not allege that the publication intended to charge that the prostitute was under his protection for illicit purposes. The non-suit was set aside by the court of appeals, Hunt, J., holding that the publication was libelous, and in his opinion, says : “ Words which are in themselves actionable, which in their natural construction tend to injure the memory of the dead, or the reputation of one alive, and expose him to hatred, contempt or ridicule, need no averment that they were intended to impute such offense.”

It need pot be said here that the words above quoted did not impute a crime for which Moore could be punished criminally, and that they would not, therefore, be actionable per se if uttered orally. They became actionable by reason of the deliberate act of the defendant in printing or publishing the same.

In Cooper v. Greeley, 1 Denio, 362, the court by Jewett, J., says: “ The proposition of the defendant’s counsel that to .render a publication actionable it must impute a crime cannot be sustained. This rule has never been extended to libels in this state, nor had it been in England tor the last 150 years.” The learned judge in this opinion, at page 363, quoted with approbation the language oí the author in Starkie on Slander, by Wendell, vol. 1, p. 169, as follows : “ Upon the whole it may be collected that any writing, pictures or signs which derogate from the character of an individual by imputing to him either bad actions or vicious principles, or which diminish his respectability and abridge his comforts by exposing him to disgrace or ridicule, are actionable without proof of special damage ; in short, that an action lies for any false, malicious and personal imputation effected by such means and tending to alter the party's situation in society for the worse.”

We are referred by the learned counsel for the defendant to Purdy v. The Rochester Printing Co., 96 N. Y., 372.

In that case the plaintiff, who was a coroner, was called to hold an inquest over the remains of a man found in the snow and apparently frozen to death. The coroner took charge of the case and empanelled a jury, and on further examination he was found to be alive. The defendant’s publishing company published the account of the coroner’s proceedings. For that publication the plaintiff, without alleging that he was a physician, prosecuted the defendant for libel.

On the trial, no malice being proved, and as the words related to the official character of the plaintiff and exhibited a prompt and efficient performance of his duty, the court directed a verdict for the defendant

I do not think that case is analogous to the one at bar.

We have carefully examined all the authorities referred to by the learned counsel for the respondent, and find none that goes to the length of holding that words not imputing a crime may be published reflecting upon the character and social standing of a person, and calculated to bring him into disrepute, and leave him remediless.

It is quite true, as urged by the learned counsel for the defendant, that when we go beyond well defined limits, marked by criminal charges, as fixed in oral slander, of words actionable per se, we have not the sure guide in determining the limit of what are libelous publications. But such doubt must be solved by the application of the tests, which we have seen consist of whether the libelous words charged tend to diminish the respectability of the plaintiff and expose him to disgrace, ridicule and obloquy.

If they do, they are, within the authorities, libelous and actionable without alleging or proving special damages.

Tested by these rules, we must hold that the learned judge erred in dismissing the plaintiff’s complaint.

The judgment must be reversed, and a new trial ordered, costs to abide the event

Putnam, J.

I concur. See Shelby v. Sun Printing & Publishing Association, 38 Hun, 474; affirmed 109 N. Y., 611; Morey v. Morning Journal Association, 123 N. Y., 207; 33 St. Rep., 49.

Herrtck, J., not acting.


text:
    Mary E. Stephens, Resp't, v. The Hudson Valley Knitting Co., App'lt.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    Master and servant—Negligence.
    Plaintiff was injured by the fall of some rolls of cloth which were piled near the table where she was required to work. There was evidence that defendant’s superintendent had been warned in plaintiff’s hearing, that the pile was liable to fall, and was understood to say it would be all right. The jury found that plaintiff did not know the danger to be apprehended from the cloth as it was piled, and that she continued her work relying on the assurance of the superintendent. Held, that under these facts the defendant was liable for a failure to furnish plaintiff with a safe place to work, and that a verdict in her favor was proper.
    Appeal from judgment in favor of plaintiff, entered upon verdict for $5,500, and from order denying motion for a new trial.

      William Shaw (Matthew Hale, of counsel), for app’lt; Smith & Wellington (George B. Wellington, of counsel), for resp’t.
   Mayham, P. J.

The plaintiff,while as an of the defendant in its mills, was permanently injured by the falling of a pile of rolls of cloth, which was stacked on the floor near where the plaintiff was engaged in her work.

The action was prosecuted on the theory that the defendant was bound to furnish a reasonably safe place for his servants to perform their work, and that by the defendant causing or permitting the piling of these goods on the floor where the plaintiff was required to work, it thereby rendered the place unsafe, and is, for that reason, responsible for the injury.

The theory urged by the defendant-is that the goods were piled in the place and manner in which they were by the co-servants of the plaintiff, and if negligently piled it was the negligence of a fellow servant, for whose negligent acts the defendant is not liable.

It is also insisted by the defendant that the plaintiff was apprised of the danger to which she was exposed, and was herself guilty of contributory negligence.

There is proof in the case that before the injury complained of Dowsley, the superintendent of the defendant, was warned by Mrs. Bancroft, who was in charge of that floor of the mill, that the pile of cloth would fall.

The pile was about seven feet high and consisted of rolls of cloth eighteen inches in diameter and each weighing about forty pounds.

There was evidence that the plaintiff heard the conversation as to the dang'-r of the cloth falling, and she testified that she understood Dowsley to say “ it would be all right. ”

The plaintiff continued her work at a table near the pile of cloth, and it finally fell and she was injured. On the trial, after instructing the jury that their verdict must be a general verdict for one party or the other, and if for the plaintiff must state the amount, the court submitted the following questions on which the jury was asked to find:

“First.. Was injury to those working at the table where plaintiff worked to be reasonably apprehended from the cloth that was piled ? ¡

Second. Was the attention of any officer of defendant called before the accident to the dangerous condition of the cloth as piled ?

Third. Did plaintiff know the danger to be reasonably apprehended from the cloth as it was piled ?

Fourth. Did she continue her work, relying on any actual assurance from any officer of the company that there was no danger, or that the danger would be removed ? ”

The jury rendered a verdict for the plaintiff for $5,500, and at the same time answered, in writing, the questions submitted to them by the court, as follows:

To the first question. Yes.

To the second question. Yes.

To the third question. Ho.

To the fourth question. Yes.

The rule is well settled that the employer is bound to furnish a reasonably safe place, considering the nature of the employment, for the performance of the work by the servant. The plaintiff was required, while at work, to be at the seaming table,which was on the same floor where the cloth was piled, and but a short distance from the pile, and one of the questions submitted to the jury was whether that was a reasonably safe place, with the cloth piled as it was.

In Freeman v. Glens Falls Paper Mill Co., 39 St. Rep., 621, the court say: “ If this risk related to the safety of the place of the employment, and not to the dangerous character of the employment itself, then it was the risk of the master and not of the servant ; for, while the deceased took upon himself the risk of the dangerous character of the services, the employer assumed the risk and duty of furnishing a reasonably safe place for the performance of that service.”

In Cullen v. Norton, 52 Hun, 9; 22 St. Rep., 221, the court say: “ One of the duties of the master was to furnish his servant a safe and proper place in which to prosecute his work. This duty continues to be the master’s, no matter to what subordinate servant he delegated the services.”

When the master delegates to a servant or agent the performance of duties which he owes to his employes, he is liable for the manner in which the agent performs such duties.

The agent, under such circumstances, becomes the alter ego of the principal, who is bound by his acts or admissions, and knowledge in him is knowledge in the principal. Corcoran v. Holbrook, 59 N. Y., 517; Tendrup v. Stephenson Co., 51 Hun., 462; 21 St. Rep., 487.

“ There are certain duties which concern the safety of the servant, which belong to the master to perform, and he cannot rid himself of responsibility to his servant for not performing them by showing that he delegated the performance to another servant, who neglected to follow his instructions or omitted to do the duty delegated to him. Booth v. Boston & Albany R. R. Co., 73 N. Y., 38.

It is quite true, as urged by the defendant, that.if the master furnish safe tools, utensils and place for the use of his servants, he is not responsible if without his fault or knowledge it becomes unsafe by use, when they do not require the attention all the timé of a skilled mechanic. Cregan v. Marston, 126 N. Y., 568; 38 St. Rep., 428.

But that rule does not apply to a case where, as here, the place may have been safe at the time of the employment of the plaintiff, but is afterwards made unsafe by the act of the defendant or of his alter ego.

The jury have in this case found all the facts against the defendant necessary to uphold their verdict. And upon that branch of the case it seems to us that their verdict is sustained by the evidence. The jury have also found that the plaintiff was not aware of the danger and had a right to rely upon the declaration of the defendant’s agent that it would be all right.

This evidence is sufficient to uphold the conclusion of the jury after the verdict.

Assuming, as we must from the facts proved, that the conclusion of the jury upon the question submitted to them is supported by the evidence, their verdict for the plaintiff becomes the logical and inevitable result of such facts.

The judgment must be affirmed, with costs.

Putnam and Herrick, JJ., concur.


text:
    The People ex rel. Henry Bradley v. The Board of Supervisors of Essex County et al.

      (Supreme Court, General Term, Third Department,

      Filed May 9, 1893.)

    1 Supervisors—Board has no power to determine contests.
    Subdivision 1, of § 7, of chap. 482, Laws 1875, giving power to boards of supervisors to act upon the election and qualifications of its members, was repealed bv chap. 686, Laws 1892, and there is no longer authority for such action by the board.
    2. Same.
    Relator and one Sullivan were candidates for the office of supervisor. Certain paster ballots cast for relator were rejected on the canvass, but the legality thereof was determined by the court of appeals, which ordered them counted. Relator was declared elected, qualified and upon refusal of his demand for the books and papers made application to the court, which directed their delivery to him. Thereafter the board of supervisors, acting upon an alleged contest, excluded relator and seated Sullivan. Held, that the board had no power to do so, even if the act of 1875 had not been repealed.
    Certiorari to review the action of the board of supervisors in assuming to pass on the election and qualification of the relator and in seating his opponent, one Sullivan. It appeared that at the town meeting in 1892 the relator received a majority of the votes cast for supervisor of his town, all the ballots cast for him being paster ballots,” which were not allowed to him on the canvass because he had not been put in nomination as a candidate at a primary meeting; that all such ballots were rejected and his opponent, Sullivan, declared elected; that a writ of mandamus was issued thereafter requiring the town canvassers to re-assemble, allow for relator the paster ballots, declare the result and issue a certificate accordingly; that such writ was sustained by the general term and court of appeals, 64 Hun, 356; 45 St. Rep., 533 ; 133 N. Y., 493 ; 45 St. Rep., 866 ; that the canvassers re-convened and declared relator elected, gave him a certificate and he filed his oath of office and an undertaking and demanded of Sullivan the books and papers, and on his refusal procured an order to compel their delivery to him. At the meeting of the board of supervisors both the relator and Sullivan appeared and claimed the seat. A committee was appointed, which took evidence and reported in favor of seating Sullivan, and such report was adopted and Sullivan permitted to take the seat.

      Foley & Wing (Daniel F. Wing, of counsel), for relator; Robert Dornburgh, for resp’t.
   Mayham, P. J.

The questions in this matter have been before the courts in various forms, and have all been determined in favor of the relator.

The legality of the votes by which he was declared elected have been determined by the court of appeals, and pursuant to the decision of that court the disputed ballots were ordered counted, and upon such count the relator has been declared elected supervisor of the town of Minerva, Essex county.

The record on this certiorari shows that after receiving his certificate of election he duly qualified, filed his bond and oath of office, and demanded of his predecessor the possession of the books and papers pertaining to his office, which was refused; that upon application to the court after the due hearing of the parties interested, the court awarded him the custody of said books, etc., as the acting supervisor of said town.

We are clearly of the opinion that the question which settled the right of the relator to this office was substantially passed „ upon by the court of appeals, and that the board of supervisors had no power under the provisions of subd. 1 of § 7 of chapter 482 of the Laws of 1875, if that law had not been repealed, to determine any contest between the relator and Sullivan, who was seated by the action of the board. But chapter 482 of the Law's of 1875 was, on the 18th of May, 1892, in all things repealed, and could not, therefore, furnish any legal authority for the action of the board of supervisors on the Í5th day of November, 1892, when the board assumed to exclude the relator and seat Sullivan as a supervisor of that town.

We are, therefore, of the opinion that the action of the board of supervisors in seating Sullivan and excluding the relator was illegal, and should be set aside and reversed, with fifty dollars costs and disbursements to the relator.

Putnam and Herrick, JJ., concur.