text:
    Simon B. Gamacho, App’lt, v. Hamilton Bank-Note and Engraving Company, Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

    1. Corporation—Officers—Authority.
    It is not to be inferred, as matter of law, that the general manager of a, corporation, who is charged with the executive administration of the current business, has authority to bind the corporation to any contract to run for a series of years, in the absence of oroof of authority to make such a. contract. v
    3. Same—Apparent authority.
    The fact that such manager is in the habit of employing, for indefinite-periods, ordinary servants, subject to discharge at will, is insufficient to $ show apparent authority to make a special contract of employment for three years.
    8. Same—Ratification.
    The mere fact that the president, who was not aware of the facts connected with the employment, saw the services rendered, will not put the •company upon inquiry as to the existence of a contract in writing, nor is it a ratification of any terms or conditions of any employment which might have been made without due authority.
    4. Same.
    The mere copying of letters into the letter book of the corporation does-not constitute ratification, if that was directed by the manager, and no knowlege thereof was brought home to the other officers of the company.
    Appeal from a judgment dismissing the complaint.
    Eustace Couway, for app’lt; William L. Turner, fo:: resp’t.
   PATTERSON, J.

In the complaint in this action it was alleged that the plaintiff and the defendant corporation, on the 17th day of June, 1893, entered into a contract in writing, by which the former was employed to render services to the latter for a period of three years from the date mentioned, and upon a sliding-scale'of compensation, viz. that for the first three months being at the rate of $2,000, and an increase at fixed periods in an agreed ratio, so that for the last year’s services the compensation would be at the rate of $4,840. The writings claimed to contain the terms of this contract consist, as set forth in the complaint, of two letters, one of which is signed by the plaintiff, and directed to-Charles E. Gray, as vice president and general manager of the defendant. This-letter is in the following words:

“I beg to state herein my understanding of the agreement made between your company and myself, which understanding please confirm. I am to enter into the service of your company for the term of three years from the 19th day of June, 1893, with-such an official title as you may hereafter designate, to advance said •company’s interests, to assist you in the conduct of it business, and to sell the goods manufactured by it either at home or abroad to the full extent of my ability.”

Then follows the statement as to salary. In answer to this, «Gray, signing as vice president" and manager, wrote to the plaintiff under the same date as follows:

“I am in receipt of your favor of to-day, in which you name the understanding of the agreement made between this company and you for the period of three years, which understanding I hereby confirm, and bind this company to carry out.”

The plaintiff then proceeds to state that on the 9th day of September, 1893, he demanded payment of a month’s salary under tire said contract, and that on the 19th of October, 1893, he demanded payment of another month’s salary under the contract. The action was brought to recover on such two causes of action. The answer is substantially a general denial of liability. When the case came on for trial, the'counsel for the plaintiff offered in evidence the two letters which were set forth in the complaint, and which are above referred to, and they were rejected by the court on the ground that no authority yras shown on the part of Mr. Gray to enter into the contract, ‘ and that there was no evn -dence sufficient to "establish a ratification of the plaintiff’s employment; and thereupon, for lack of any evidence to support the plaintiff’s case, the complaint was dismissed, to which ruling the plaintiff duly excepted, and that ruling is how the only subject for review which upon this record comes properly before us.

It is conceded that there is nothing appearing in the case to show that Mr. Gray had, by virtue of any powers conferred upon him by the by-laws of the corporation, or by the express delegation of the directors, the ability to make a contract binding upon the corporation of the character of that in suit.- But it is claimed by the plaintiff that, in making his arrangement with Gray, he ■was entitled to rely upon the apparent authority which he exercised as general manager, and upon the assumption that, as general manager, it was within his province to make this contract of -employment. In the absence of proof of what exact authority -belongs to a person descriptively styled a “general manager,” there .is no rule by which a court can be guided in determining what the powers of such an official really are, except such as the evidence in a particular case may furnish of what the person has done in the general course of the business of the corporation. That the words “general manager” would import that the person bearing that title is a general executive officer for all the ordinary business of the corporation is all that may properly be inferred; and this would justify, in connection with proof of acts done, a ■conclusion that all ordinary contracts made by such an official are authorized by the corporation. But no presumption of law can be indulged in that, because a person acts as such a manager, he has the power to bind his principal to contracts of an extraordinary nature, and of such a character as would involve the corporation in enormous obligations and for long periods of time. If a general manager, simply by virtue of his being charged with the ordinary conduct of the business, would have the right to bind his principal to a contract for services for three years, involving the obligation to pay thousands of dollars of salary to an employe, why may not that power extend indefinitely, so that he may make contracts for all employes for indefinite periods, and thus assume to himself a power which it cannot be supposed was ever intended to be lodged in him? That this position of the plaintiff was an-important one, and outside of the usual contracts of employment, is apparent from the fact that not only is the compensation larger in amount, and the period a long one, but it seems that it was regarded by the plaintiff of so much consequence that it was to be dignified with an official title, for which even a stipulation was made.

The cases referred to by the counsel for the appellant, concerning the holding out of an agent to a party dealing with him in good faith, require no consideration. The doctrine they announce is not to be disputed. It is a question of fact, though, whether Gray was acting within the scope of an apparent authority when he undertook to bind the defendant by this contract.

It therefore remeins to be ascertained whether or not, acting as manager, Mr. Gray performed such duties or made such contracts as would justify this plaintiff in relying upon an apparent authority; that is to sa)r, an authority derived from acts of the agent, recognized by the principal, and which therefore may be presumed to be within the authority conferred upon the agent. Upon this subject we have no evidence whatever except the testimony given by the plaintiff himself. He states that Mr.Gray was in the habit •of employing and discharging employes; but there is nothing whatever to show that any of the employes thus hired or discharged by Mr. Gray were more than ordinary servants of the company employed for short periods; and there is nothing to show that Mr. Gray ever made any contract with any employe for any fixed period of time, or involving any ■ other than a temporary employment, subject to discharge at the volition of the agent or general manager, or of other officers of the corporation. That testimony is utterly insufficient to lay the foundation for an inference that the general manager possessed an authority to make so extensive and unusual a contract as that which is set by this plaintiff.

It is also claimed on the part of the plaintiff that although there may have been an absence of original authority, still there was a ratification of the, act of Mr. Gray in making the contract counted upon in the complaint. Of course, if this contention is well founded, the right of recovery would be as absolute as if an original binding contract had been proven. But here we find that the evidence completely fails to establish the ratification. ■ Certainly, it is not to be deduced from any relation to the subject of Mr. Seebeck, who was president of the company at the time the letters were written. The plaintiff testifies that Mr. Seebeck was in and out, and saw him rendering services. The mere fact that such services were rendered would not put the defendant upon inquiry as to the existence of a contract in writing. Nor is it a ratification of any terms or conditions of any employment which might have been made without due authority. Harrington v. Bank, 1 Thomp. & C. 361. But it is obvious from the plaintiff’s own testimony that Mr. Seebeck was not aware of the facts connected with the employment, and there can be no ratification without knowledge of the facts. The plaintiff testifies that ata certain interview had just before his discharge, Mr. Schaeffer and Seebeck, were present. He says:

“I told both of these gentlemen the circumstances of having come into the company’s employ, and showed them the press-copy letter and his [Mr. Gray’s] answer, at which they expressed great surprise, and Mr. Seebeck some indignation, and some commiseration for me.”

The mere copying of letters into the letter book of the defendant corporation does not constitute a ratification if that were directed by Mr. Gray, and no knowledge brought home to other officers of the company. The copying of letters into letter, books would have no more significance than Gray’s signing his name to the original letter.

We are of opinion that, upon the whole case, the court was right in rejecting the evidence of the two letters alleged to have constituted the contract, and upon these grounds: First. That it is not to be inferred as matter of law that an agent who was mere general manager of a business, by which term is meant one charged with the executive administration of the current business of the corporation, has the authority to bind his principal to any contract to run for a series of years, in the absence of proof of authority to make such a contract. Second. That while such an authority may be inferred from evidence of acts of the general manager, known to and acquiesced in by the officers of the corporation, yet the proof in this case is'wanting in that element, and there is no proof of such acts as would have justified the plaintiff in relying upon an apparent authority to make the contract on which this action is brought. Third. That there is no peoof of ratification with knowledge of the contract.

The plaintiff having sued on the contract, and not upon a quantum meruit, and the effect of a judgment in his favor being to make a binding adjudication, entitling him to recover for subsequent breaches, the judgment must be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: INGRAHAM, J. O’BRIEN, J.

license: Public Domain

text:
    Robert Dudley Winthrop et al., as Executors, etc., Pl’ffs, v. Urania P. Welling et al., Def’ts. Mary L. Barbey, Resp’t, v. Mary O. Maxwell, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

    1. Easements—Mortgage—Foreclosure—Surplus.
    The grant of an easement in land subject to a mortgage vests in the owner of a dominant estate an interest in land in the servient estate, entitling such owner to such a proportion of any surplus realized upon the foreclosure of the mortgage as the value of the easement bore to the value of the whole servient estate,
    3. Same.
    It is the duty of the referee, appointed upon application for the surplus, to ascertain the proportion that such piece of land bore to the whole property mortgaged, and then to apportion, and to distribute the proportion of the surplus money standing in place of such strip of land between the dominant and servient owner, giving to the former the value of the easement, and to the latter the balance of the amount of the surplus money.
    S, Same.
    A person owning an easement in such a strip of land is entitled to a subtantial amount of such award,
    Appeal from an order awarding the entire surplus to the respondent.
    The mortgaged premises were owned in December, 1891, by the •defendant Welling, subject to the mortgaged just foreclosed. The adjoining lot to the west was owned by one Woolley. Woolley and Welling entered .into a written agreement under seal, which was recorded, whereby Woolley agreed that a certain portion of his lot should forever remain unbuilt upon, and Welling made a similar agreement with reference to an adjoining portion of her lot; the express purpose being to preserve light and ventilation for the rear of both houses. The claimant, Barbey, became the owner of the equity of redemption of the Welling house, expressly subject to this agreement. The defendant Maxwell has succeeded to the ownership of the Woolley premises, subject to this agreement. The defendant Maxwell claimed before the referee that she was entitled to the surplus, and offered to show the value of her interest in the mortgaged premises. The testimony was excluded under objection, the referee holding that her claim could not be considered. The court at special term confirmed the report of the referee.
    Edward E. Sprague, for app’lt; Daly, Hoyt & Mason, for resp’t.
   INGRAHAM, J.

— The appellant and respondent were the owners of adjacent premises between Seventy-Fourth and Seventy-Fifth streets, Fifth and Madison avenues, in the city of New York. By an agreement that had been executed by the former owners of these two properties, an irregular strip of land upon the rear of the said lots was always to remain unbuilt upon, it being expressly provided that this covenant should run with the land, and should bind the heirs and assigns of the parties to such agreement. It was not disputed but that the effect of this agreement was to give to the land of each of the parties to it an easement in the land included within the strip described belonging to the other party to> the agreement. Thus the strip of land described in the agreement that belonged to the party of the first part would be subject to an easement appurtenant to the property of the party of the second part, and the strip of land described in the agreement belonging to the party of the second part would be subject to an easement appurtenant to the property of the party of the first part. The property of the party of the first part to this agreement was subject to a mortgage at the time the agreement was executed, which Was superior to the easement granted by the agreement in question. But by this agreement an interest in the real estate therein described as belonging to the party of the first part was conveyed to and vested in the party of the second part, subject to such mortgage. That mortgage was foreclosed, and the property sold under a decree in the action brought to foreclose it, from which sale there resulted a surplus of $4,019.69; and in surplus money proceedings the whole of that surplus was awarded to the respondent, on the ground that the appellant, as the owner of the land to which the easement in question was appurtenant, had no interest in the land which would entitle her to an award of any portion of such surplus money. That position, I think, was erroneous. The referee seems to proceed .upon the theory that, as the appellant had no lien upon the property that could be enforced, she was. not entitled to any of chis surplus money. It is clear that she had no lien. Her right does not depend upon the existence of a lien, but upon an interest in the property itself which was appurtenant to the land that she owned that was adjoining. The easement was appurtenant to the property owned by the appellant, and the property owned by the respondent was subject to that easement.. The property of the appellant was an interest in the land of the respondent, the land of the appellant being the dominant estate, and the land of the respondent being the servient estate. The appellant thus became an owner of an interest in the land itself. It is true that such interest was subject to the morgage foreclosed; but, subject to such mortgage, it existed as such an interest in the servient estate as would a' tenancy by an inchoate' right of dower, a tenancy by the curtesy, or any other interest in the estate itself. Upon the foreclosure of the mortgage, such easement, having been destroyed by the conveyance of the referee, the surplus money would represent the estate in the land, which would include the interest or ownership of both the dominant and servient estates. A lien may be created by parol, but an easement is an interest in land, and a parol contract creating it is void under the statute of frauds. Wiseman v. Lucksinger, 84 N. Y. 37. This sum of $4,019.69 thus stood as the value of the lancf covered by the mortgage, subject to the mortgage, and, it being in court, it was to be.distributed by the court to those having liens upon such land, and, upon the extinguishment of all liens, to the owners of the land itself. And this appellant, as the ownér o£ an interest in the land, was entitled to that proportion of the surplus money that her interest in the land bore to the whole fee of the land. The object and purpose of the foreclosure suit was the distribution of the fund arising upon the sale; and the rights and equities of the defendants who were lienors or claimants of the-equity of redemption were before the court. Bergen v. Carman, 79 N. Y. 159. The appellant was made a party defendant because she had such an interest in the land as that the sale of the land by the referee in the foreclosure suit would convey her interest in the land to the purchaser; and such conveyance did convey her interest in the land, and such interest as she had vested in the grantee in the referee’s deed. She was entitled, therefore, to-such proportion of the surplus money as would represent her interest in the estate thus granted by the referee; and it was the-duty of the referee to have ascertained just what that interest was, and just what it bore to the whole estate.

The easement of the appellant, however, was not an interest in all of the property conveyed by the referee. It was merely an easement affecting the property described as the space of land which should always remain unbuilt upon, belonging to the party of the-second part in the agreement creating the easement, being a piece of land thirty-eight feet and nine and one half inches in length, five feet in breadth upon the center line of the block, and seven-feet and seven one hundredths of an inch in breadth upon the southerly side of said strip. The appellant had no interest in the remainder of the land covered by the mortgage, and was not entitled to any of the proceeds of such land. It was the duty of the referee, therefore, to have ascertained the proportion that this strip-of land bore to the whole property mortgaged, and then to have-apportioned the surplus money in the same proportion, and to-have distributed the proportion of the surplus money standing in place of such strip of land between the appellant and the. respondent, giving to the appellant the value of her easement in this strip of land, and to the respondent the balance of the amount of 'the surplus money apportioned to this strip of land.

The interest that these two parties held in this surplus money that was the proceeds of the sale of this strip of land bears a close ’ resemblance to that of the owner of the fee of land subject to an. easement where the land has been taken under the right of eminent domain; and in such a case it is settled that the amount, awarded for the value of the land stands in the place of the land, and is to be divided among those owning the land, and a person-owning an easement in such a strip of land is entitled to a substantial amount of such award. In re Eleventh Ave., 81 N. Y. 446. Such an award was there apportioned between the owner of the dominant and thp owner of the servient estate, the court saying:

“But the commissioners having, under the direction of the-court, awarded substantial and just compensation for the rights and interests of all parties interested in the land, and having treated them as subject to no public rights, the aggregate of this compensation must represent the entire value of the land taken; and there seem to be no means of equitably adjusting the rights of the parties except by pursuing the course adopted by the learned referee,—of treating all these rights and interests as having bee» taken by the city, and apportioning the awards among the several-parties in whom these rights and interests were vested.’’

That is, I think, what should be done in this case. The referee’s deed having conveyed the interest of this appellant, the surplus money stands in the place of the whole property, subject to the mortgage. In that case a distribution of one-forth of the award to the servient estate and three-fourths to the dominant estate was sustained. Under this rule it may be extremely doubtful as to whether the appellant would be entitled to a very large award, as it would seem that the proportion of the surplus money that should be awarded to this strip of ground would be comparatively small, and the award Would be limited to the value of the easement in each strip. The appellant, however, is entitled to have that amount determined, and for that purpose the order should be reversed, and the case sent back to the referee to ascertain the interest of the appellant in this award, applying the principles above stated. Ten dollars costs and the disbursements of this appeal to the appellant to abide the final result of the proceeding. ■

YAN BRUNT, P. J., and WILLIAMS, J., concur.

O’BRIEN, J.

This court is not now directly concerned with the question as to the extent or amount of Mrs. Maxwell’s interest in the fund. She does not claim to be interested in the whole premises, but only to that part over which she had an easement. But, if she had any interest in that part, her offer to prove the value of such interest should have been entertained; and the question upon this appeal arises out of the ruling by the referee in excluding evidence of the value of appellant’s interest in the premises, and in refusing to consider her claim to the surplus moneys. This surplus arose by foreclosure of the mortgage, and the premises had been converted into money, the whole of which - has been awarded to Mrs. Barbey as the owner of the equity of redemption. The appellant contends that this award was illegal, the contention being that this sale under foreclosure, as between the parties to this appeal, was, in effect, a sale of an interest in real estate belonging to the appellant, for which she should receive compensation out of the surplus. The referee refused' to recognize this claim, basing his ruling upon the ground1 that the appellant had no lien upon the premises. While this conclusion is right, it does not dispose of the appellant’s contention, because she -was not advancing it as a lienor, but was insisting that she had an interest in the land which was sold, out of which the surplus arose, and that of this surplus she should receive an amount commensurate with her interest. The question, .therefore, narrows .down to this: Did the appellant, by. virtue of the agreement, acquire such an interest" in the property foreclosed as entitled her to receive any of the proceeds resulting from a sale and the creation of a surplus after the payment of the mortgage? It must be conceded that the appellant had, by virtue of the agreement of December, 1891, an easement in" the mortgaged property, Mrs. Barbey’s predecessor in the title having conveyed by such agreement to Mrs. Maxwell’s predecessor in title, for a valuable consideration, an easement in -the premises, subject, however, to an outstanding mortgage. The agreement creating the easement by its terms does not grant any part of the fee, but reserves a certain space in the rear of each lot for light and air, ■which agreement, being subsequent to the mortgage, was cut off by the foreclosure and sale; and thereby both Mrs. Barbey and Mrs. Maxwell have lost their rights in the respective lands of the other party, and Mrs. Maxwell now holds her lot free and clear of any easement in favor of what was formerly Mrs Barbey’s lot. Prior to such foreclosure, Mrs. Maxwell could compel the person owning the adjoining premises to respect the easement, either by a suit in equity restraining the breach of the covenant, or by an action for damages in case the covenant should be broken. But she claims more, and that, by reason of her rights having been cut off by the foreclosure of the mortgage, to which they were necessarily subject, she now occupies a better position than the one she had before, and is to be treated as if she had been a joint owner of the fee. We fail to see how she can maintain this positian as joint owner in the whole or part of the premises, in the absence of any convejumce to her of any portion of the land in question, or of any agreement which creates a right of title in and to any portion of the land itself. As stated, what she acquired was an easement; and that such easement is property, and, in a certain sense, an interest in the land, must be conceded; but it is not such an interest in land as can be carved out and sold and conveyed, nor is it an incumbrance enforceable against land. The owner of the premises to which it is appurtenant has no estate in or control over the servient property. The very essence of the easement created, and the terms of the agreement show this. It is an accommodation, convenience, service or privilege one man enjoys in the land of another. Here it is a simple negative easement, prohibiting the owner of the servient estate from using his land as he might have done but for the agreement, and the owner of the dominant land cannot enter nor exercise any power or dominion over it. What was covered by the mortgage, which was prior and superior to this agreement, was all the land of the mortgagor, the surplus money representing that land for the purpose of paying incumbrances and liens, and, after they are paid, it belongs to the owner of the equity of redemption.

The theory of the claimant, Maxwell, is that she has some right in the land that is transferred to the surplus fund upon a supposed analogy between her case and that of an award for private property taken for public use, where the easement of abutting owners are compensated for. The analogy, however, does not hold good, for that is done under statutory proceedings, and the compensation for taking the easements is made directly through such proceedings, and as a necessary part thereof. In re Eleventh Ave., 81 N. Y. 447. In the case cited, which was a proceeding to acquire lands for streets in the city of New York, an award was made for; the full value of the land to unknown owners, and it was therein held that the owner of the fee was not entitled to the whole award;, that, where a perpetual easement in the land is vested in another person, the latter is entitled to the value of his easement. Nor is the appellant’s interest to be likened to the claim of a lessee in possession under a covenant for quiet enjoyment, as will be seen by reference to the principle controlling cases of that kind, and clearly enunciated in the cases of Clarkson v. Skidmore, 46 N. Y. 308, where the opinion was written by the same learned judge who-delivered the opinion of the court In re Eleventh Eve., supra. In Clarkson v. Skidmore, a lessee for years of mortgaged premises-held under a lease containing a covenant for quiet enjoyment, upon foreclosure and sale under the mortgage, was held to be entitled to receive out of the surplus moneys the value of the use of the premises for the remainder of his term; and it will be seen by a perusal of the opinion that it was expressly put upon the ground that the lessor “had granted the term and covenanted for the quiet enjoyment during that term. He was therefore bound to protect the estate of the lessee against those, claims.” And “the surplus-moneys in controversy belonged to the parties who had estates or 'interests in the land sold which were cut off by the sale. The real estate having been converted into money, .several parties were entitled to be paid out of the fund the equivalent of their respective interests, in the order of their priorities as between erch other.1' The distinction we have sought to point out, that the award to the lessee in such" case was in accordance with the covenants-existing between the' lessor and lessee, and the equities resulting, therefrom, is clearly pointed out in Burr v. Stenton, 43 N. Y. 466, wherein the importance of the presence or absence of the covenant is emphasized. In the latter case the lessor, at the time of giving the lease, had no title in the land, and entered into no covenant,, express or implied, for quiet enjoyment, except against his own acts; and, though he subsequently acquired title, it was held that this did not inure to the lessee by virtue of the lease, but that the-latter held the premises as against the lessor by virtue of the lessor’s personal covenant, which operates by way of estoppel only to prevent his interference with the lessee’s possession, and in noway binds him to protect the lessee against foreclosure of previous liens upon the property, and that, consequently, a mortgage upon the premises having been foreclosed, and a surplus arising, it was held that; as between them, the lessor was entitled to the whole, the lessee having no right to atiy portion thereof. As said in the-opinion:

“It is therefore entirely clear that the appellant (lessee) had no-remedy against the respondent for recovery of damages by reason of the failure of the title of both by sale of the premises upon a foreclosure of the mortgage. How, then, has he any equitable lien upon the surplus arising upon(such sale for any such compensation? If he has, the singular case is presented where the lessee can obtain compensation when there was a surplus upon sale by virtue of prior incumbrance, when he would have no valid claim in case the incumbrance exhausted the entire proceeds. This is sought to be sustained upon the ground that the estate of the lessee in the land has been sold, and to work out an equity in his favor, for the reason that the value of his estate so sold has gone to increase the surplus arising upon the sale, and that, therefore, he has an equitable claim to indemnity for the value of his estate out of the surplus. * * * When the litle of the lessor is destroyed or overthrown, it is equally obvious that all titles derived from him by lease fall with it. * * * That title was subject to the lien of the mortgage, and liable to be destroyed by its foreclosure,—a fact which actually occurred. Upon its bccurrence and sale of the premises by virtue thereof, the estate both of the lessor and lessee terminated. It is absurd to say that the estate of the lessee for the unexpired term specified in the lease was sold, for the reason that all the estate he ever had therein was defeasible upon and defeated by the sale upon the foreclosure of the mortgage. This left him to his remedy upon the covenants in his lease, if any.”

And to the suggestion that the lessor should have paid off the mortgage, and thus protected the title of the lessee, the answer is furnished by the statement that “ this he (the lessee) could have done by paying the amount to the holder of the incumbrance, and taking an assignment therefor to himself,”

We think that this case, in principle, is applicable upon the facts here appearing. The easement which the appellant acquired was subject to the mortgage which had been forclosed. This right was, at best, but a defeasible interest in the property. The effect of the forclosure was to vest in the purchaser the entire interest in the estate of the mortgagor and mortgagee as of the date of the mortgage, and unaffected by subsequent incumbrances and conveyances by the mortgagor. Rector, etc., v. Mack, 93 N. Y. 488. In that case, as in this, an easement was created subject to a mortgage, and the property was conveyed subject to the mortgage, but without any liability on the part of the person who took the conveyance to pay the same; and, although the latter purchased on the foreclosure, it was held that she owed no duty to the plaintiff or mortgagee requiring her to pay off the mortgage, and so there was no equity preventing her from asserting her title; and it was therein said that the plaintiff, to save .its easement, should have appeared in the foreclosure suit, and, by offering to bid the full amount of the mortgage debt and the costs upon the sale, subject to the eapement, should have asked to have the judgment modified so as to direct such a sale. So here, what was created, was an easement for the mutual benefit of the owners of the two lots that adjoined each other, and such an easement as neither could deprive the other of the use of, but which they both lost, not by the act of the other, but by the foreclosure and sale of the mortgage which was in existence at-the time the agreement was entered into, and to which the agreement, was necessarily subject Whatever right Mrs. Maxwell may have.had under it to have the space agreed upon on the adjoining lot kept open, which a court o£ equity would enforce, it was one which could be enforced only while Mrs. Welling or her grantee remained the owner of the lot; and when the lot was sold under the foreclosure of the prior mortgage, and the ownership passed to another person, all rights that either had under, it were extinguished. All that it was in the power of Mrs. Barbey’s grantor to givé to Mrs. Maxwell’s grantor (the lot being mortgaged) was the right to enjoy the space agreed upon as long as it was in her power to give it, which she carried out when she sold the lot by granting it subject to the easement. This was all that she could give, and all that Mrs. Maxwell’s grantor could receive, and they both had and enjoyed all that they were entitled to under the agreement. We fail to see, therefore, what foundation there can be for the claim of Mrs. Maxwell against Mrs. Barbey, or what kind of action she could maintain upon such a state of facts, either legal or equitable. As against the purchaser upon the foreclosure, no equitable action would lie to restrain,the use of the land purchased in any way that the latter might see fit to- use it; and, if the land had sold for just the amount of the mortgage, we do not see that there would have resulted to Mrs. Maxwell, as against Barbey, any action at law for damages, because the injury was not one sustained by the wrongful act of another, nor was it an' injury that was covenanted against by Mrs. Barbey- or her grantors, nor was the loss of the use and enjoyment of this space brought about by any wrongful act of Mrs. Barbey’s, but was the result of an act the possibility of the happening of which Mrs. Maxwell’s grantor knew When he made his agreement, the agreement being necessarily subject to the mortgage, and no' claim being made that there was any statement, misrepresentation, or wrongful act in respect to the existence of such mortgage.

It therefore narrows down-to this: That while, in one sense, Mrs. Maxwell acquired an interest in the land of Mrs. Barbey by reason of the easement created, this did not constitute her a joint owner or tenant in common, nor confer upon her any estate in the fee of the land. It was created by ah agreement containing no personal covenants which would give any right to damages, and was a defeasible interest, because expressly subject to the mortgage. The effect of the foreclosure, therefore,- must be regarded as within the contemplation of all the parties to the agreement, which, by destroying the easement that Mrs. Maxwell had, equally took away and destroyed the mutual easement given in the property of Mrs. Maxwell. Upon the ground, therefore, that the appellant had no such interest in the land as entitled her to be compensated out of the surplus, the order appealed from should be affirmed, with costs.

, PATTERSON", J., concurs. .


author: PATTERSON, J.

text:
    William R. Laidlaw, Resp’t, v. Russell Sage, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

    1. Assault—Liability.
    Causing a person to change his position by an act intentionally done, whereby his person is used by another as a shield or protection from an impending or threatened danger, known to the latter, but of which the former was ignorant, furnishes a ground of action for damages for the injuries sustained by the former.
    2. Same.
    A crucial distinction exists between an act instinctively done under a natural impulse of self-preservation, and one deliberately done by a man who takes in the whole of the surrounding circumstances, and then "with reason and forethought puts a human buffer between himself and anticipated injury.”
    3. Same—Burden of proof.
    In such case, the burden is cast upon the latter to show that his act did not in any way contribute to any part of the injury, and it is not incumbent on the former to prove that his injuries would not have been so great had he not been moved from the position he originally occupied.
    4. Trial—Charge.
    Where the court has charged fully and completely, in its own way, every element of request, it is not bound to repeat the words of counsel, or to reiterate in other forms the clear and pointed instructions already given.
    5. Same.
    In determining the correctness of a charge, it should be taken as a whole, and not merely isolated portions thereof.
    6. Juror—Competency—Bias.
    Where a juror, after testifying that he would as willingly render a verdict for defendant as for plaintiff, if the evidence warrants it, states in answer to a question by defendant’s counsel, that he might have some “reluctance” to decide in favor of defendant, because of sympathy, and on further examination by the justice, the juror testifies that he can render a verdict on the evidence uninfluenced by any consideration and that by "reluctance” he did not mean that he would be influenced in rendering his verdict, it is not error to overrule a challenge by defendant for bias.
    7. Same—Opinion.
    In civil cases, it is enough, if the proffered juror has formed or expressed an opinion gathered froto statements of parties or from a previous trial, and not merely from current rumor and gossip, to disqualify him.
    8. Same—Bias.
    Where a juror is connected with a corporation which manufactures articles for a company of which defendant is a member, it is not reversible error to reject him.
    9. Evidence—Identity.
    It is not necessary that a witness should swear from personal knowledge to identity, but it may be established by circumstantial evidence and even similarity of name has been held sufficient to prove it.
    10. Same.
    Where, in an action for personal injuries received by plaintiff by reason of being placed by defendant between himself and a dynamite explosion, it appears that defendant, an elderly man, was taken, 'after the explosion, to a drug store, to have his injuries, which consisted of burns upon the hands, etc., dressed, and sat on a chair in the middle of the floor, testimony of a witness that he heard an elderly man, who was sitting on a chair in the center of the floor of the store, whose hands were burned and clothes torn,(by the explosion, state that he had had some protection from the explosion, was held sufficient to identify defendant as the man who made the statement, so as to render it admissible against him, especially when the jury are instructed to disregard such statement unless they believe it was made by defendant.
    11. Witness—Cross-examination.
    It is entirely within the discretion of the trial court to determine how far, and to what extent, for the legitimate purposes of the case, he will allow or disallow questions disparaging to a witness and not relevant to the issues.
    12. Appeal—Evidence.
    The evidence, in this case, was held sufficient to sustain a finding that defendant placed plaintiff between himself and the explosion.
    13. Same.
    Where, in an action for personal injuries, alleged to have been caused by reason of defendant’s placing plaintiff between himself and a dynamite explosion, there is evidence that the main force of the explosion was in certain lines of direction, that plaintiff was moved by defendant from a place where he was without either of the main currents of the explosion, to a place where he was within the full sweep of the currents, such evidence is sufficient to show that plaintiff’s injuries were aggravated by his removal.
    Appeal from a judgment for plaintiff, entered after trial at circuit, and from an order denying a motion for a new trial.
    Edward 0. James, for app’lt; Noah Davis, for resp’t.
   PATTERSON, J.

We are aslied to reverse the judgment appealed from, and to send this cause back for a fifth.' trial, upon a record containing something over 200 exceptions, applying in various ways to almost everything not in the interest of the defendant said or done by the justice who presided at the last trial. We have carefully examined the whole case, and find there was no error committed of a character or sufficient in gravity to call for the re-submission of the issues to a jury; and that the case is now in such condition that the important question of the liability of the defendant as matter of law may be properly presented to the court of last resort. ' But it is due to the defendant and 'his counsel1 that the reasons which impel us to affirm this judgment should1 be fully set forth. In former opinions of the general term in this department the rule of decision applicable to this particular case was announced, and compliance with the requirements of that rule by making proof of facts within it is the test of the right of the plaintiff to hold the judgment now appealed from. In the first of the opinions referred to (73 Hun, 125; 56 St. Rep. 63) it was, in substance, declared that causing the plaintiff to change his position by an act intentionally done, whereby the person of the plaintiff was used by the defendant as a shield or protection from an impending or threatened danger, known to the defendant, but of which the plaintiff was ignorant, furnished a ground of action! for damages for- t(ie injuries the plaintiff sustained. It resulted: from this expression of the views of the court that to recover the plaintiff must prove by a preponderance of evidence—First, that the act of aggression was committed; second, that it was done Intentionally, and with the design mentioned; and third, that injury ensued. It was further considered that, the elements referred to being established prima facie, the burden was cast upon the defendant to show that his act did not in any wray contribute to any part of the injury, and that it was not incumbent on the plaintiff to prove that his injuries would not have been so great had he not been moved from the position he originally occupied. On the second appeal (80 Hun, 550; 62 St. Rep. 374) the general rule of liability was reasserted; but it was more particularly pointed out that a crucial distinction existed between an act instinctively done under a natural impulse of self-preservation, and one deliberately done by á man who takes in the whole of the ■surrounding circumstances, and then “with reason and forethought puts a human buffer between himself and anticipated injury’’ ; the act being voluntary not necessarily making it actionable, but to be so it must have proceeded from calculation and design.

That group of the defendant’s exceptions which relates to the law as charged by the trial justice at the last trial may be conveniently examined at this point. The exceptions referred to were taken to portions of what the justice did charge and to parts of what he refused on request to charge. In it general scope-and purport the rule of liability as declared by the general term was -announced, butin one respect with a radical modification. Instead -of adhering to the views of the appellant branch of. the court, the trial judge instructed the juiy that the burden of proof was on the plaintiff from the beginning to the end of the case on every issue, thereby compelling the plaintiff to prove that his injuries were greater than those he would have sustained had his position not been changed by the alleged act of the defendant. This ruling, binding as it did the plaintiff to a more rigorous one than was deemed by the general term necessary to the maintenance of the action, is made the subject of an argument which will be considered in another connection. In other respects the charge ac-cords with what the general term had previously held. The jury were told that the action was brought to recover damages alleged to have been sustained in consequence of what, if it happened at ■al!, was technically an assault; that if the defendant placed his hands on the plaintiff, or drew or moved him to a different position from that he previously.occupied, that act was an assault. It was submitted as a question of fact whether that was done so as to cause a material change in the plaintiff’s position. If the jury found it was not done, they were told the defendant was entitled to the verdict They were also instructed that if the defend-ant did move the plaintiff involuntarily—that is to say, without a formed intention to do so—he would not be responsible; and that particular part of the charge was emphasize and illustrated by an example of what constituted an unintentional and involuntary act. The jury were further instructed that Mr. Sage was in no wise responsible for the explosion or its effects, but that they must be satisfied that the plaintiff’s injuries resulted from Sage’s act. This •general outline of the charge shows that is was much more favorable to the defendant than, under the views of the general term, he could have anticipated. With the single exception of the so-called “ shifting of the burden of proof,” the charge was entirely correct in the main features referred to, and, if there were an error in that particular, it was greatly to the advantage of Mr. Sage. The judge did-not charge that a mere technical assault entitled the plaintiff to recover substantial damages. He merely said it gave a right of action, and expressly stated “ the question of damages is an entirely different one. For such an assault the damages may be merely nominal,” etc. * ' '

Exceptions appear in the case to particular phrases and language of the trial judge in charging- the jury, and in reply to remarks of counsel made in connection with those' exceptions. Wherever the exception appeared to indicate that the instruction to which it referred was obscure or incomplete, or might be con-trued in a different sense from that intended by the judge, a correction or explanation was given ; and we find no material error in anything said by the court concerning those matters. Where-reference was made by the court to the testimony of witnesses, it was done with fairness and substantial accuracy. Concerning the defendant’s requests to charge and the rulings of the court, upon them, we find that most of them; and almost all of the vital ones, were charged in the exact language in which they were presented by counsel. Some requests were modified, and properly so; some were so multifarious as to justify a refusal to charge them. The fourteenth request is an important one, and embraced all the elements of liability. It was refused only as to form. The court had charged fully and completely, in its own way, every element, of that request; and, having done so, was not bound to repeat,, parrot-like, the words of counsel, or to reiterate in other forms the clear and pointed instructions already given. Having critically examined the charge and the requests of the defendant and the-rulings of the court upon them, we are unable to say that any error by which the jury could have been misled or were wrongly advised is made to appear. By separating certain remarks of the-court from their context, and considering them dissociated from antecedent or subsequent utterances, it is easy to predicate error of what was said; but, taking the charge and instructions and rulings on requests to charge as an entirety, we think the defendant has no just grievance, and no wrong was done him in the submission of the cause by the court to the jury.

Recurring to the earliest stage of the trial, the learned counsel for the defendant insists upon the validity of exception taken to-the rulings of the court as to the qualifications of jurors. By the Code of Civil Procedure the justice at circuit was the trior of all questions concerning the fitness and competency of jurors, and his determination thereupon is reviewable under exception in the-same manner as a decision of an issue of fact. Mr. Putnam was called and examined as to his qualifications for service on theÍanel. He was evidently an intelligent and discriminating man. n answer to a question put by the defendant’s counsel he stated! that he might have some reluctance to decide in favor of the defendimt because of sympathy. Thereupon he was challenged “for bias.” Prior to the answer referred to, Mr. Putnam had said that he would as willingly render a verdict for the defendant as for the plaintiff, if the evidence warranted it; whereupon the defendant’s cousel said, “I am not speaking of the evidence now;” thus plainly putting his subsequent question On an entirely different footing. Then the justice, in order to ascertain exactly what was the state of mind of the proposed juror, and that he might decide the question he was obliged to determine, asked:

“Are you satisfied in your mind that, disregarding sympathy and everything else, and any reluctance you may have, that you. could listen to the testimony of the witnesses here, independent of every other consideration in the world, and render a verdict upon that testimony, uninfluenced by every other consideration T Answer. Entirely so. Question. Reluctance does not mean that it would influence you in rendering your verdict when you come-to consider the case. Answer. No, sir.”

Without further examination, the defense insisted on the chal» Ienge. It' was not allowed, and a premptory challenge was interposed. The ruling of the court was right, Mr. Putnam was & competent person to serve. He was not disqualified either for principal cause or favor, grounds of challenge which still exist in civil cases (Butler v. Glens Falls, etc., Railroad Co., 121 N.Y. 112; 30 St. Rep. 678), although jurors are generally examined in such cases on the supposition that the provisions of the Code of Criminal Proce lure as to actual and implied bias, and the modification of the law as to previously formed or expressed opinions as to criminal charges, furnish a rule applicable to all cases. Mr. H. C. Furman was called for service, and was rejeeted by the court, to which the defendant excepted. Mr. Furman swore that he had expressed an opinion from reading the evidence in the first case, but it had been somewhat modified by reading the account, of the second trial. He also swore his judgment would not be swayed by any opinion he held or impression he had, but that he then had both an opinion and impression; which meant, of course, he would enter the jury box with them. He was held to be disqualified. In civil cases it is enough if the proffered juror has-formed or expressed an opinion gathered from statements of parties or from a previous trial (Rogers v. Rogers, 14 Wend. 131), and not from mere current .rumor and gossip. The judge, as trior, could determine the effect of this opinion notwithstanding the declaration of the party examined as to his own state of mind. The law in that regard has not been changed. The ability to-disregard and throw aside ' a previously formed or expressed opinion is a modification of the law applying in criminal trials only. It was first introduced by chapter 475, Laws 1872, and subsequently incorporated, as part of subdivision 2 of section 376 of the Code of Criminal Procedure. Another gentleman, Mr. Edward Fisher, was rejected because of his connection with a manufacturing corporation which made parts of instruments used by the Western Union Telegraph Company. According to the admission of -his counsel, Mr. Sage “is one of the Western Union ■Company. Although Mr..Fisher’s statements were such, as to make him appear in print qualified to serve, -we cannot say that the-trial judge, who observed his manner'and demeanor, was not justified in concluding, as matter of fact that he would not be a fair and impartial juror. No especial reference is necessary to the exceptions relating to Mr. Dohn and Mr. Rockwell.

We are next' to consider the errors assigned as .having been committed during the progress of the trial, and of these we find that the learned counsel for the defendant laj^s particular stress upon the admission of the testimony of the witness Baillard, and upon the course counsel was permitted to pursue in the cross-examination of Mr.'Sage. Baillard, who was not called on either of the three preceding trials, testified under objection' that after the explosion, and when Mr. Sage was receiving attention in •O’Connell’s drag store, a man pointed out to him as Mr. Sage said “ something about' being protected; about a protection he had had from the explosion.” That this testimony was all-important cannot be questioned. It was relied upon -as an admission by Sage that something had happened to benefit him, or save him from more severe injuries than those he actually sustained, and it was sought to weave it into the fabric of the plaintiff’s case by connecting it with the claim that nothing else occurred, or could have occurred, that would have afforded protection, except the very act which Laidlaw alleged was committed by the defendant. It was strenuously objected there was no competent evidence that Mr. Sage ever made the remark,- or that he was identified as the person who made it if it were made by any one. The witness did not know Mr. Sage, and could not swear from personal knowledge to his identity; but it was not necessary that he should. Identity may be established by circumstantial -evidence, and the cases have gone so far as to hold that similarity of name is sufficient to prove it. Hatcher v. Rochelean, 18 N. Y. 86. Did the surrounding circumstances point to Mr. Sage as the person who made the alleged remark ? The witness was a medical student. He had heard of the explosion, and went to the drug -store. Mr. Sage was pointed out to him by O’Connell or some one else. He describes the person thus pointed out as an elderly man, who had been injured by the explosion. His clothes were torn. He was seated in a chair in the middle of the room (where-Mr. Sage did sit). He was looking at his bands (which the evidence shows were badly burned and blistered). From the proven ¡situation, condition of the man who spoke, and all the circumstances, there was enough to go to the jury as showing pointedly that Mr. Sage was the person who spoke. Nevertheless, the character of the testimony and the vagueness of the expression are-such that, unless the jury were properly instructed concerning them, we should have much hesitation in sustaining a verdict which might or could have been influenced by it; but the court •did so charge in the following words:

“I say to the jury that, unless they are satisfied that Mr. Sage ■made the remark, then, of course, Mr. Sage is not responsible for .it at all, and that under the circumstances they can consider "whether the witness sufficiently identified Mr. Sage as the person who made the remark (it was testified that he did sit in the middle of the room), and whether, from all the surrounding circumstances, it was a sufficient identification. Unless they are satisfied Mr. Sage made the remark, they are not to consider the testimony at all.”

The animadversions of counsel on the testimony of Baillard proceed upon the assumption that the witness was deposing to identification only by hearsay, viz. the statement of a bystander that Mr. Sage was the person to whom the remark is attributed. This ignores all the corroboration of circumstances which sufficiently pointed to Mr. Sage as the person who spoke. That Bail-lard was contradicted by Mr. Bragen and Dr. Munn was a matter for the consideration of the jury.

The cross-examination of the defendant was a searching and severe one, during which several incidents occurred, now made the subject of indignant criticism by his counsel. The questions put to Mr. Sage respecting- an. alleged interview between a third person and Rockwell, a juror not accepted, had nothing to do with the case in any aspect, but it is the merest ■assumption that they in any way prejudiced the defendant; and so of the inquiries as to the lack of interest Mr. Sage took in Laidlaw’s welfare. If these inquiries were not considered proper, objection should have been taken when they were first mentioned, which was not the case with the topic last referred to. All of the objections to the manner of the cross-examination may be disposed of in a word. It was entirely within the discretion of the trial judge to determine how far, and to what extent, for the legitimate purposes of the case, he would allow or disallow questions disparaging to a witness, and not relevant to the issues. In President, etc., v. Loomis, 32 N. Y. 127, it was held that the range of irrelevant inquiry for the purpose even of degrading a witness is -subject to the control of the presiding judge, “who was bound to permit such inquiry when it seemed to him, in the exercise of a sound discretion, that it would promote the ends of justice, and to exclude it when it seemed unjust to the witness, and uncalled for by- the circumstances of the ■case.” If the questions on cross-examination were objected to on ■the specific ground referred to, the court was at liberty, and it was its duty to act in its best judgment, and we cannot say its decision presents a manifest case of abuse or injustice.

Another incident of the cross-examination of Mr. Sage to which objection was taken was the use by counsel of a newspaper cutting, from which many statements of a reporter, stated to be a distant relative of Mr. Sage, were taken as the basis of questions put to the witness. We do not understand that the learned counsel for the defendant contends that his adversary had not the right %o use this newspaper report of an alleged interview with Mr. Sage for the purpose of framing questions to ascertain whether he did not make for publication various admissions or statements within a day or two after the explosion took place, and yet that was obviously the purpose with which it was used. The subjects of Mr. Sage’s appearance, statements, and declarations shortly after the occurrence were not altogether immaterial, especially in view of the rightful purpose of the examining counsel to test the condition of the memory of the witness. The court limited the examination to the testing of the witness’ recollection. The newspaper article was not read, and the extracts that were incorporated in questions put to the witness were trivial and unimportant. So with reference to the questions as to the defendant’s supposed wealth and multitudinous occupations. They are not of sufficient consequence to authorize us to send these parties back for another trial. We are not called upon to approve or condemn the course of examination pursued by counsel on either side, but merely to say that we find no legal ground for a reversal of the judgment by reason of any of the matters connected with the cross-examination of Mr. Sage:

We are finally to consider the exceptions to the motions for nonsuit, and the sufficiency of the evidence to sustain the verdict, as it is brought up by the appeal from the order denying the motion for a new trial. Bearing in mind what has previously been referred to as the several elements of fact, proof of which was declared by the general term to be essential to a recovery, we have examined the whole record, and with the result that we hold that, a case was made out sufficient to go to the jury, and that, we should not interfere with the verdict. Concerning the act itself,—the moving of the person of Laidlaw, he swears to it positively. Mr. Sage as positively denies it. Mr. Robertson, the-young man who was one of the greatest sufferers of all, was called to corroborate Mr. Sage. He was a disinterested witness, and meant to tell the truth; but his testimony is not of the convincing character claimed for it by the defendant. He does say that from the time Mr. Sage began to back away from Norcross until the explosion took place he was able to see both Laidlaw and Sage, and that the latter did not touch or move the former; but in this he must have been greatly mistaken, for from his situation he could not have kept his eyes constantly on Sage and Laidlaw and Norcross, for they were not all in the same range of vision all the time,—that is, from the point at which Robertson stood, which was at the little window in the anteroom partition, through which he saw Sage and Laidlaw at the table. Yes he says that from the moment that Norcross backed out of the anteroom, and drew a. pistol, he kept his eyes steadfastly upon him, which would, of course, have prevented his constantly keeping Laidlaw and Sage in view. In this point, therefore, the testimony is not so forcible as the defendant claims. Laidlaw testified," in substance, that he walked from the lobby of Mr. Sage’s office into the anteroom, passed Mr. Sage, who was in conversation with a person who turned out to be the dynamiter, and took a position about the middle of a small table facing Rector street, and looking out on Trinity Churchyard. Mr. Sage having read the startling paper Norcross handed him, with admirable nerve and coolness, undertook to temporize with the madman. He saw the situation and the impending horror. He says so himself. There is no disagreement as to what he next did. He walked backward to the angle of the small table nearest Horcross, and took a half-seating position on it. Then Laidlaw says Sage put out his hand, and gently and quietly drew him before him, so that he covfered the greater part of Mr. Sage’s body, and then the latter spoke the words addressed to Horcross, “If I trust you, why cannot von me?” How, it is incontrovertible that Mr. Sage knew of the danger and Laidlaw did not. Mr. Sage positively denies having put Ms hands on Laidlaw until after the catastrophe, when he says he ’helped Laidlaw to arise; and he denies that he ever uttered the words attributed to him. He also says that Laidlaw stood at the very opposite" end of the table all the time. Laidlaw further testified that as soon as the words were uttered by Mr. Sage the explosion took place. The respective versions of the two parties were clearly put before the jury, who believed Laidlaw. His testimony, if true, showed the commission of the act, its deliberate character, Sage’s knowledge of the threatened danger, and his own Ignorance of it, from all which the jury could have inferred, and did infer, that the gently drawing of the plaintiff before him,without violence, but yet with strength sufficient to induce the plaintiff to yield to it, was done by Mr. Sage with the the intent and design of screening his person with the body of the plaintiff. And There it becomes material to consider an argument of the counsel ior the defendant, before referred to. The trial judge, disregarding the ruling of the general term, held that it was incumbent upon the plaintiff to prove that his injuries were the result of his removal .and that they were more aggravated than they would have been had he not been removed; and it is confidently claimed that the case is barren of evidence showing or tending to show those facts. It might be sufficient on this topic to say that it was unnecessary, under the rule of law as laid down by the general term, for the plaintiff to prove as much as the justice at circuit thought requisite; and that, the evidence being sufficient to go to the jury within the rulings of. the general term, it is immaterial whether or not the measure of the trial judge’s view was filled up by the evidence. But, unless we totally misconceive that evidence, there was some proof that the injuries actually received were caused by the removal of the plaintiff, and that he was more seriously injured than he would have been had he not been interfered with. It is deducible from the testimony of Mr. Reeves, who examined the premises immediately after the explosion took place, that its main force was exerted in two ascertained lines of direction—one north from the point at which the bag containing the dynamite was dropped, within the range of which were Mr. Sage and Laidlaw, and Horcross, who was blown through the Rector street window, and picked up dead on the highway. The joists that ran at right angles with the Rector street wall were found by Mr. Reeves to be fractured—fourteen of them entirely destroyed; split from end to end. Again another course was diagonal from a hole made where the bag is supposed to have fallen, northeast across the room, in the direction of Broadway. From-the situation of the table it is far from improbable, and it might fairly be inferred, if the jury believed that Laidlaw originally occupied the position in. which he swears he first stood, that, had he remained there, he •would not have been drawn into either of the main currents of the explosion, and he certainly did get within the sweep of one of them. • The case.is not, therefore, without some evidenc that the grievous injuries Laidlaw sustained resulted from his being moved; nor can it be said that he has not shown some facts from which the legitimate inference might arise that his hurts were aggravated by his removal. It was before the jury, then, by evidence which they believed, that Mr. Sage did move the plaintiff; that he did it with deliberation; that it was with an intent to use him as a screen, and that Laidlaw was injured in consequence. The finding as to deliberation was an inevitable one if the jury believed the rest of Laidlaw’s story, for Mr. Sage persistently claimed that he never touched Laidlaw at all, and that, when the explosion happened, Laidlaw was separated from him by the-whole length of the table. Mr. Sage does not and will not allow the possibility of his .having inadvertently or instinctively touched and moved Laidlaw. He unqualifiedly denies it, and removes that element from the discussion, notwithstanding which the court, recognized the possibility that it might have so happened, and charged the jury accordingly.

Another view is presented by the learned counsel for the defendant, under which he claims that the version given by Laidlaw is simply an impossibility, and that the proof is conclusive from, circumstances that Laidlaw’s body could not have been used as a shield to protect Mr. Sage. Laidlaw stated that when Mr. Sage-moved him he was drawn to a position which covered all Mr. Sage’s person except the right arm and leg. Now, it is clear that certain particles or substances of flying material penetrated Mr. Sage’s clothing, and entered his body near the median line. The question is asked, How could this have occurred without those particles passing through Laidlaw’s body, if he really stood in front of Mr. Sage in the attitude he claims? It is not sliown that Laidlaw and Sage were in actual close contact. There was an open space between them—how wide does not appear, but it must have been some inches at least. It is not conceivable that, in the titanic whirlwind of the explosion, small, flying fragments may have penetrated Mr. Sage’s person through the open space referred to. There-is nothing more extraordinary in the incident under consideration than in the circumstance that the force of the explosion blew open a large iron safe, and scattered its contents all about the room. No one can account for the eccentricties of such an occurrence. If there were known and provable unvarying incidents of. such phenomenal events, some ascertained pnysical law, acting uniformly and equally on all such occasions, we might be able to say what was or what was not impossible within the operation of such law; but we have no such guides or criteria. And so also with the burns-on Mr. Sage’s hand, spoken of by Dr. Munn, and which were severe, and of long continuance without healing. If we could say at what fraction of a second they were inflicted, an argument might be-drawn to support the defendant’s .view; bat his hands may have been burned while he was falling, or immediately he fell, it is all a matter of conjecture, and the 'argument of impossibility cannot be allowed to prevail.

We have thus considered the material points urged by the learned and zealous counsel of the defendant, and repeat that we would not be justified in subjecting these parties again to a retrial of the cause. It is in a better position now than it ever has been for the ultimate judgment of the court of appeals, and we have endeavored to set forth our reasons for affirming the judgment in such a way that it may be reviewed on this record in the light of what we conceive to be the true state of the case as it has been presented to us. In conclusion it is to be said that'we do not consider the verdict excessive, under all the circumstances of the case.

The judgment must be affirmed, with costs,

All concur.


author: INGRAHAM, J.

text:
    Edward N. Lynch, Resp’t, v. The Mayor, Aldermen and Commonalty of the City of New York, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

    1. Municipal corporations—Street improvements—Bro.
    The award of a contract by the commissioner of street improvements to the lowest bidder before any contract has been executed under it creates & binding contract on behalf of the city to execute subsequently the contract, for a breach of which the city is liable for damages.

      2. Same—Waiver.
    After the bidder has been notified by the commissioner that his bid has-been rejected and after he has written a letter to the commissioner protesting against the reletting of the work, and after the commissioner has readvertised the proposal for bids, such bidder by accepting the return of his, deposit, does not waive his right to insist upon the forformance of this obligation by the city.
    Motion for a new trial on exceptions, ordered to he heard in the first instance at general term.
    L. L. Kellogg, for pl’ff; Edward H. Hawke, for def’t
   INGRAHAM, J.

This action is brought to recover damages-sustained by the plaintiff in consequence of the refusal of the defendant to execute and sign a certain contract or agreement whereby the plaintiff was to perform certain work in the construction of a sewer in Franklin avenue from Third avenue to 167th street in the city of New York. The commissioner of street improvements of the Twenty-Third and Twenty-Fourth wards having advertised for bids for the construction of this sewer, the plaintiff made a bid, which was received by the commissioner, and the bid of plaintiff, with others, was opened as required by statute on the 24th day of February, 1892; and on the 26th day of February the plaintiff received a letter from the secretary of the commissioner of street improvements, by which the plaintiff was notified that: 5‘Your proposal for constructing sewer in Franklin avenue from Third avenue to One Hundred and Sixty-Seventh street being the lowest, the contract for same has been awarded to you, and it will be necessary for your sureties to appear and qualify before the comptroller at his office;” and the said commissioner transmitted the plainliff’s bid to the comptroller of the city of New York. The question is whether or not this action on the part of the commissioner of street improvements of itself created a binding contract between the city and the plaintiff for which the city was responsible in damages if the defendant refused to make the contract and complete the work. It appeared that on March 30th— six days after the letter awarding the contract to the plaintiff had been sent—the commissioner notified the plaintiff by another letter that his proposal to build the sewer had been rejected on account of the irregularity of the bid, and subsequently the defendant refused to execute the contract with the plaintiff. The statute under which the commissioner of street improvements of the Twenty-Third and Twenty-Fourth wards of the city of New York was appointed (chapter 545, Laws 1890) regulates the powers of such commissioner. By section 1 it is provided that he shall be subject to the general provisions, powers, and limitations prescribed by law relating to the heads of departments and public officers of the city of New York. And by section 2 of the said act it is provided that the said commissioner of street improvements shall have the exclusive right to construct and maintai n all bridges, tunnels, sewers, streets, etc., and he is given all the rights, powers, duties, authority, and is made subject to the obligations in relation to the said streets, sewerage and drainage which, prior to the passage of the act, were conferred upon, possessed, and exercised by the department of public parks of the city of New York. By section 64 of the consolidation act it was provided that:

“Whenever any work is necessary to be done to complete or perfect a particular job, or any supply is needful for any particular purpose which work and job is to be undertaken or supply furnished for the corporation, and the several parts of the said work or supply shall together involve the expenditure of more than one thousand dollars, the same shall be by contract, under such regulations concerning it as shall be established by ordinance of the common council, excepting such works now in progress as are authorized bylaw or ordinance to be done otherwise than by contract, and unless otherwise ordered by a vote of three-fourths of the members elected to the common council; and all contracts shall be entered into by the appropriate heads of departments and shall, except as herein otherwise provided, be founded on sealed bids or proposals, made in compliance with public notice duly adver ti sed. * * * If the heads of the department shall not deem it for the interests of the city to reject all bids, he shall, without the consent, or approval of any other department or officer of the city government, award the contract to the lowest bidder, the terms of whose contract shall be settled by the counsel to the corporation as an act of preliminary specification to the bid or proposal, and who shall give security for the faithful performance of his contract in the manner described and required by ordinance.”

The question here is whether a notice by the head of a department to the lowest bidcer that his proposal is the lowest, and that the contract has been awarded to him, precludes the head of a department before the actual execution of the contract, from rejecting all the bids under the public notice which has been duly advertised. In other words whether the award of a contract by the commissioner to the lowest bidder before any contract has been ■executed under it creates a binding contract on behalf of the city to subsequently execute the contract, for a breach of which the city is liable for damages. Let us look for a moment at the rights and obligations of each of the parties to this proposed contract, immediately after this communication awarding the contract to the plaintiff was received by him. The city, by its duly authorized officer,, had advertised for bids or proposals to do certain work that the city was authorized to do. Annexed to that proposal was a contract which had been settled by the counsel to the ■corporation as an act of preliminary specification to. the bid or' proposal. The plaintiff had made a bid offering to do the work for a price named, and it is not disputed that he was the lowest bidder. Whether or not the contract should be awarded to him was then to be determined by the commissioner. The statue imposed upon the commssioner a specific duty. That was, first, to determine whether or not it was for the interests of the city to reject all-bills. If he determined not to reject all bills, he was then required, without the consent or approval of any other department or officer of the city government, to award the contract to the low■est bidder. Consolidation Act, § 64. Upon that award being made, the lowest bidder was bound to execute the contract, and to furnish securities to secure the faithful'performance of the contract, who, in addition to the justification and acknowledgment of the bond, should be approved by the comptroller. If the lowest bidder neglected or refused to accept the contract within five days after written notice that the same had been awarded to his bid or proposal, or if he accepted, but did not execute, the contract, and give the proper security, it should be readvertise or relet as above provided. See Consolidation Act, § 64. But, in addition to that, by section 65 of the consolidation act, it was provided that each bidder must deposit with the department or officer a certified check drawn to the order of the comptroller, or money to an amount of not less than three nor more than five pvr cent, of the amount of the bond required by the department or officer for the faithful performance of the work proposed to be done or supplies to be furnished ;"and, if the said lowest bidder shall refuse or neglect, within five days after due notice that the contract has been awarded, to execute the same, the amount of the denosit by him shall be forfeited to and retained by said city a liquidated damages for such neglect or refusal. Thus we see a system provided bv which work to be done is to be by contract to be entered into by the appropriate heads of departments, to be founded on sealed bids or proposals, made in compliance with public notice, duly advertised. The head of a department, unless he shall deem it to be for the best interest of the city to reject all bids, shall, without the consent or approval of any other department or officer, award the work to the lowest bidder; and when this award is made, the lowest bidder is bound to execute the contract, or forfeit to the city a sum of money which he is required to deposit with the officer at the time-of the submission of his bid. Upon the determination by the head of the department that it is not for the interest of the city tore] ect all bids, he is bound to award the ■ contract to the lowest bidder; and, when that award is made, it seems to be clearly the intention of the statute to bind both the lowest bidder and the city to sign the contract. The penalty for a violation of that obligation by the lowest bidder is fixed by the statute, namely, a forfeiting of the amount of money that the bidder was required to deposit at the time of the submission of his bid; and as no penalty is affixed for a refusal of the city to perform its part of the contract, namely, to execute the contract that had been settled by the corporation counsel as an act of preliminary specification to the-bid, we think it follows that the city was liable for the damages sustained by the lowest bidder for the refusal to execute the contract. This view, we think, is sustained by the case of People v. Campbell, 72 N. Y. 498, where Miller, J., in delivering the opinion of the court says :

“ This position, we think, is well founded, and there appears to-be no question that, if the proceedings were all regular, and conducted according to law, as is asserted, and the relator has in all respects conformed to the provisions of the city charter, that he-has a right of action against the city for all damages which he has-sustained by reason of the refusal of the commissioner to execute and carry out the contract.”

See, also, the case of People v. Thompson, 99 N. Y. 641.

Pleading sections 64 and 65 of the consolidation act together, it seems to be clear that it was the intention of the legislature to reserve the uncontrolled right .to reject all bids to the head of the department having the work in charge. Upon him rested the responsibility of determing whether or not it was for the interest of the city that all bids should be rejected. But when it had been determined that it was not for the interest of the city to reject all bids, he was then bound to award the contract to the lowest bidder. The making of such an award was a determination that it was not for the interest of the city to reject the bids, and the right of the parties then became fixed. The city was bound to execute the contract, and the lowest bidder was bound to execute his contract, and to furnish the security required by the statute. If he failed to perform that obligation, he forfeited the sum of money that had been deposited with the officer. If the city failed to perform and execute the contract, it became liable to the lowest bidder for the damages that he sustained in consequence of such violation. There is nothing in the statute to suggest an intention to-leave this question as to whethér bids should be rejected or not open, to be determined by the commissioner after the contract had been awarded. On the contrary, the express provision of the statute is that that question should be determined before the award, and, it having been determined by the commissioner, the rights of the parties became fixed.

The objection to the form of the verification by the proposed sureties is frivolous. He followed explicitly the directions upon the proposed bond, and, as each of the sureties was both a householder and freeholder, it would have been improper to strike out either of the words. No point is made but that the sureties were amply sufficient, and would have been approved by the comptroller but for the action of the commissioner in stating that he had rejected all the bids.

We do not think that the plaintiff, by accepting the return of his deposit, waived his right to insist upon the performance of this obligation by the city. It does not appear expressly when that money was returned to.him, but the check returning it appears to have been paid February 9, 1893. That was after he had been notified by the commissioner that his bid had been rejected, and after he had written a letter to the commissioner protesting against the reletting of the work, and after the commissioner had readvertised the proposal for bids. The city baa thus refused to perform its obligation to execute the contract, and there is nothing to require that the plaintiff’s money should remain longer with the comptroller. Nor is there anything to show that the plaintiff neglected or refused to accept the contract within five days after written notice that the same had been awarded to his bid or proposal, or that he refused to execute the contract or give the proper security. The notice to the plaintiff that the contract had been awarded to him was dated February 26th. There is no evidence upon what date that letter was received by the plaintiff, but it must have been subsequent to February 26th, the day of its date. He had five days to accept the contract, and he testified that after he got this letter he went down to the comptroller’s office with one of his sureties; and on March 3d the commissioner expressly repudiated his award of the contract, and rejected the plaintiff’s bid, claiming it to have been irregular. We think there is no evidence to show that the plaintiff refused to execute the contract offering the requisite sureties as required by the statute.

The only other objection urged by the defendant is an exception to certainoquestions that were asked the plaintiff as to the value of the rock that was to be excavated by the plaintiff, and the objection is based upon .the ground that is was inadmissible as showing what plaintiff had paid for rock. • But there was no such question asked the plaintiff. To qualify him to testify as to the value of the rock, he was asked whether he had purchased rock himself at this time, and then, basing his testimony upon the knowledge that he had acquired as to the market value of the rook, he was asked, “ What was a fair market value for this rock ? ” We do not think this testimony was incompetent, or that there was anything that prevented the plaintiff from testifying as to what the rock was worth.

The verdict seems to have been amply sustained by the evidence, and we think the exceptions should be overruled, and judgment directed for the plaintiff upon the verdict, with costa

All concur.


author: O’BRIEN, J.

text:
    The People, Resp’t, v. Thomas Curran, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6, 1896.)

    Assault and battery—Proof
    Upon an examination of the evidence in this case by the court, it Was held that the conviction was against the weight of evidence.
    Appeal from a judgment convicting defendant of assault in the third degree.
    Frederick B. House, for app’lt; John D. Lindsay, for the People.
   O’BRIEN, J.

The defendant was convicted of assault in the third degree in having beaten the complainant, a colored man, in the defendant’s saloon, on West street, on the morning of Tuesday, July 16, 1895. That the complainant was assaulted and badly cut and maltreated was established beyond doubt; but whether it was done by the defendant in his saloon is the crucial question.

The complainant testified as follows:

“ I do not know whether the number of the place that I went into on the 16th of July wras 286 West street. * * * It was one o’clock Tuesday morning. I stayed in there until five o’clock. It was on West street, next door to a lodging house. * * * I went up to the bar, and got a drink. * * * Some one came and knocked on the door, and told him to stop the fuss in there. The bartender was behind the bar. The defendant was not behind the bar, but he was in the place. I saw him behind the bar twice during the time I was in there. This cop knocked on the door, and told him to stop the fuss. He turned the light down very low. They were all shaking dice. I went to go out. He said, 1 Wait awhile; you cannot get out; the police are at the door.’ He let none in or out. There were six of us ii# there. I started to go out. The gang told us to go back, and get into the game. I was pulled back to chuck dice with them. The first round of drinks I was stuck for it. I paid for it, and said nothing. This was between one and two o’clock. Some drank whisky and some drank beer. * * * I spent about four dollars in there after I was stuck. In the morning I was starting to go out, and I was pulled back, and told to pay for a round of drinks. I said I did not owe for a round of drinks. They said I did. I said I did not. A couple of them tood me, and carried nie back to the bar. I thought it was better to pay for it. I paid for it; and after that I started to go out again. That was near five o’clock then, as near as I can judge. I did not pay particular attention to the clock. I paid for the drinks, and I started to go out again. When I went to open the door to go out, I was stopped."

Upon cross-examination he said %

“I do not remember exactly how many rounds of drinks I had there. I had about eight or nine rounds of drinks. I do not think I had more than that. * * * There were five or six people in the saloon. The defendant was there all the time.”

One Johnson was called for the people, and testified:

“ It was about five o’clock in the morning. I saw him thrown out of the liquor saloon. The saloon was on West street, between Watts and Desbrosses streets.”

A police officer was examined, who stated that he was connected with the steamboat squad, and that the station house is on West, street, near Canal, right opposite Mr. Curran’s place, which is a liquor store. “ That is 268 West street, and is a licensed saloon. * * * It is between Canal and Watts streets, and not between Watts and Debrosses. * * * It was six o’clock when I came there.”

It will be noticed that the testimony of the witness Johnson was in direct conflict with that of the officer, both as to the time and as to the location of the saloon ; and in this "condition of the record it was deemed proper to recall Johnson, who then stated that, when he said on his direct examination that the saloon he saw the complainant coming out of was between Watts and Desbrosses, it was a mistake; that the saloon was between Canal and Watts streets; and that it had an awning over it, with the name of the defendant printed on the awning. ' And that there was such an awning with the defendant’s name on it in front of the latter’s saloon was proved by the officer, who also testified that, in addition to the defendant’s, there was a saloon in the middle of the block, kept by one Hart, and “ McMann’s is alonside of Hart’s.” And, in addition to these, he testified that there was a liquor store on the corner.

This was practically all the testimony for the people as to the person who committed the assault, and as to the time and place the assault was committed; and the defendant’s counsel moved for the acquittal of the defendant on the evidence before the court, which was denied, and an exception taken.

Without adverting to the weakness of the case thus made out as against the defendant, we could briefly summarise the testimony on behalf of the prisoner. The latter himself took the stand, and swore positively that he never saw the complainant until he came with the officer on Tuesday morning, at six o’clock; that, on the evening preceding, he had left the saloon about half past ten or eleven o’clock; that he lived upstairs in the house over the saloon, where he went to bed, and did not leave his room until about six the next morning; that, when he retired, he left his bartender, a man named O’Regan, in charge of the saloon; and that, on coming down in the morning, he opened the store, and a few minutes after, and while engaged in sweeping out and cleaning up, preparatory to opening it for business, he saw the complainant, who came in with an officer, and arrested him. The bartender testified that he could not tell exactly when the defendant left the saloon on Monday evening, but is was between 10 and 11 o’clock, and that he was in charge, and remained there that night, until he close up, and took the key of the store upstairs to the watchman bf the lodging house which was over the store, and that this was in the neighorhood of about 1 o’clock. One Bloom, who was keeper of a lodging house for Curran/ or a night clerk, remembered the barkeeper’s, O’Began’s, handing him the key on Monday night, and the time when it was handed him, about 1 o’clock; and that the first person he gave the key to, after O’Began gave it to him, was to the defendant, about five minutes to 6 on Tuesday morning, when he went in and woke him up, which, it appears, it was his custom to do every morning. Another witness, named Donohue, who said he was in the milk business, testified that he served Curran’s saloon with milk, and also to customers in that house, and that he got to that place on Tuesday morning, about five minutes to 6 o’clock, and waited till about ten minutes past 6, when he saw Mr. Curran come down with his vest on his arm and His key in his hand, when he delivered him the milk. The court thereupon recalled the officer, who said it was three minutes past 6 when he made the arrest, and that when he went there, and asked the defendant why he assaulted the complainant, he at once said, “ I did not hit him.” But, upon the complainant’s saying he did, he arrested him, and took him to the station house. Subsequently, the officer was again recalled, and said that he found the complainant’s shoe outside of the saloon; that he was sober, and that he noticed Curran’s appearance, and he was sober, and he could not tell that he looked as if he had been in a fight; that “his condition w.as the same as a man who would be behind a bar. He had noj'acket or apron on. His clothes were not torn., There was no blood on his hands that I saw. * * * I did not see any blood in the saloon. The blood was outside of the saloon, where he (referring to the complainant) had been sitting, and all along the sidewalk to Watts street. * * * The trail of blood led from Watts street to the store.” The witness Johnson was recalled, and went over his former testimony, only adding that he saw the defendant give the complainant a shove out of the saloon, out of a side door; that he did not see any individual strike the complainant; that he did not see O’Began, the barkeeper, there. The complainant, however, on further cross-examination, testified that O’Began was there on that night, but that he was not the one attending to the bar; ttiad he had no trouble out on West street with a man named Kelleher, who was in court, and whom he identified as one of those in the saloon that night; that, after he had been thrown out, he saw Kelleher, did not have a fight with him on the corner, but that Kelleher invited him to come in and wash the blood off, and, when he refused, Kelleher struck him, and kick him again. “ 1 did not have any fight with him. He struck me, and sneaked inside again.” • Kelleher was called, and stated that, going along West street that morning, he was accosted by complainant, who demanded a drink, and called him some vile name, and got hold of him by the coat, and threw him down, and struck him, whereupon Kellaher struck the complainant; that they clinched, “and he got kind of the best of me in the clinch. I got up in self-defense, and hit him in defending myself.” The witness Murphy, who said he was a laborer on pier 36, testified that, on that morning, he saw the complainant and Kelleher fighting, and that it was about twenty minutes to 6 o’clock that it •occurred.

• We have thus summarized the entire evidence for the purpose of showing the inconsistencies in the statements made by the complainant and his witness as to the time and place of the occurrence, and the number of witness, whose testimony, if at all credible, ■entirely outweighs and destroys the force and effect of any inferences to be drawn in favor of the views that the complainant was assaulted by the defendant in his store on that morning. In this ■connection it must be remembered that the trial took.place on the Friday succeeding the date or the alleged assault, so that the facts were fresh in the memory of all. There was no effort made to impeach any of the witnesses for the defendant, all of whom, though poor, seemed to be credible men ; and, on the part of the complainant, we have the fact that he himself testifies to having been engaged in a game of dice from 1 to.5 o’clock in the morning, and to having had, at least, eight or nine drinks during that time; and we must take this into consideration in determining how far we should credit his statement that he was perfectly sober, and therefore able to tell exactly how and in what manner he was assaulted. The other witness for the people, who was also a colored man, says that, from the time the defendant shoved the complainant out of the door, no other person interfered with him. This, however, is contradicted by the complainant himself,# who .says that he was invited back by Kelleher to wash the blood off his face, and that, upon refusing, Kelleher went out, and struck him, and then “ sneaked back,” as he terms it, into the saloon; and this is directly contradictory of the complainants’s witness’ story that he saw no one strike the complainant, and that no one without his seeing it could have struck him after he was shoved out of the store.

"Upon the question of time the defendant is also supported by the probabilities. If the complainant received his injuries at 5 o’clock in the morning, no explanation is furnished why it took until 6 o’clock to obtain an officer, when, according to the latter’s testimony, the station house was directly opposite the defendant’s saloon, or why the plaintiff, after being so assaulted, should have remained in the immediate vicinity during all that period. We think the testimony shows either that the complainant was injured in the fight on West street, in the manner detailed by two of the defendant’s witnesses, or, if injured in a saloon, that he has confused the identity of the defendant’s with one of the two or three other saloons which were on the same block. However dhis may be, in view of the inconsistencies in the testimony of the witnesses for the people, and the strong defense which was pre sented by the defendant, not only supporting his denial of having been guilty of the assault, but consistent with such defense, we think that the evidence, unless we are to discredit entirely the sworn testimony of unimpeached witnesses, clearly preponderated, in defendant’s favor.

Upon the facts, therefore, we think the judgment was wrong, and that it should be reversed, and the prisoner discharged.

All concur.