text:
    In the Matter of the Drainage of certain swamp lands in the Town of Penfield, Monroe county.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    1. Drainage—Misconduct of commissioners.
    Misconduct, of the commissioners appointed to determine the necessity for draining lands, and the lands through which the ditches should run, cannot he pi edicated upon the fact that their meals, prior to the determination, were paid for by the petitioners, as the latter are responsible for all the costs and expenses down to the time of the determination, and must hear them if the decision is against them; while in case of a decision that the drainage is necessary they are to he refunded out of the lands benefited;, and, therefore, such payments were a mere advance of the commissioners' expenses, who gained nothing by the transaction.
    3. Same—Service of stjbbcenas.
    While it would he better for the commissioners to entrust the subpoenaing-of witnesses to other persons, it is not misconduct on their part to do it themselves.
    3. Same—-Attobneys.
    The mere fact that the attorneys for the petitioners acted for the commissioners as to the necessary legal steps, such as giving notices, etc., where they were not consulted or advised as to any question of fact to he decided, is not sufficient to charge the commissioners with misconduct.
    Appeal from an order of the Monroe county court denying a motion to set aside the majority report of commissioners in drainage proceedings, and to remove them upon the grounds of misconduct, bias and improper relations with the petitioners’ attorneys.

      William G. Jerome, for app’lt; Walter S. Hubbell, for resp’ts.
   Haight, J.

On the 13th day of July, 1891, a petition was presented to the county court of Monroe county asking for the drainage of certain swamp, bog, low or wet lands situated in the town of Penfield in that county. Hpon such petition the court made an order appointing three commissioners to hear and determine, first, whether it is necessary, in order to drain such Lands, that a ditch or ditches or other channel for the free passage of water should he opened through lands belonging to others than the petitioners; second, whether it is necessary for the public health that such lands should be drained ; and third, to take such other and further steps with reference thereto as are provided by the general drainage law of the state. Thereupon the commissioners so appointed entered upon the discharge of their duties, and after viewing the premises and hearing the parties interested made their report in which they found that it was necessary in order to drain the lands that a ditch should be opened through the lands belonging to others than the petitioners, and that it was necessary for the public health that such lands should be drained. One of the commissioners dissented from so much of the reportas found that the drainage was necessary for the public health. The motion is to set aside the majority report and to remove the commissioners who signed it.

It must he conceded that if the charges made in the moving affidavits are true the commissioners were guilty of such misconduct as would require their removal and the setting aside of their report. Matter of N. Y. C. & H. R. R. R. Co., 64 N. Y., 60; Matter of Underhill, 32 Hun, 449; Matter of B., N. Y. & P. R. Co. id., 289; Matter of N. Y., W. S. & B. R. Co., 36 Hun, 630; Clark v. Eldred, 54 Hun, 5; 26 St. Rep., 61.

But nearly all of the matters upon which the charges are based are denied in the opposing affidavits, and inasmuch as the county court has refused to set aside the report we must assume that the judge believed the matters stated in the opposing affidavits rather than those stated in the moving papers. In view of the fact that he is a resident of the county and has an opportunity to know something of the character of the persons verifying the papers, we do not think that we should interfere with the judgment exercised by him in this regard.

There are, however, three questions which require special attention. It appears that during the session of the commissioners, in taking testimony submitted by the parties interested, in the village of Penfield, the commissioners dined at a hotel in that village and that their meals were paid for by one of the persons who signed the petition upon which the proceedings were instituted. Lewis on Eminent Domain, at § 421, says: “The mere fact that the commissioners were served with refreshments by one of the parties, or dined or lodged at his house will not of itself be sufficient cause for' setting aside of the report. While such bodies should not receive entertainment from interested parties, yet if there is no improper motive and no abuse of the privilege, it will be disregarded.”

In Johnson v. Loveless, 18 N. Y. Weekly Digest, 49, it was held that the dining of jurymen by a party was not necessarily ground for reversal where it appeared that the trial was before a justice of the pence at a place where there was no public house in the vicinity, and the jurors had to get their meals at private houses, and where the evidence showed that nothing was said to them or in their hearing, and nothing was done in their presence calculated to influence their decision. But there is another ground upon which we think that the conduct of the commissioners may be justified. The statute under which they were proceeding provides that they shall be paid for their services five ,dollars for each full day actually employed in their duties; that they shall keep an account of all their expenses and of all the costs and expenses incurred in draining the lands, including all the costs and expenses incurred in any proceedings under the act and preliminary or incident thereto, all of which shall be a lien upon the property benefited. Laws 1886, chap. 636, § 8.

It will thus be observed that their services and expenses are to be paid out of the land benefited by the drain; but this can be done only in case they determine that the drain is necessary for the public health. In case they should determine that drainage was not necessary for the public health, then they would have no jurisdiction to proceed with the drain or to charge the expenses upon any of the lands. Matter of Byers, 72 N. Y., 1.

It consequently follows that the persons instituting the proceedings become liable for all of the costs and expenses of the commissioners down to the time that the adjudication is made that the drainage is necessary for the public health. In case it is so adjudged, then the costs and expenses may be refunded out of the assessments made upon the lands benefited. In case it is not so adjudged, the costs and expenses must be borne by the petitioners. The meals paid for by one of the petitioners was, as we have seen, during the hearing before the commissioners of the parties interested in the proceedings and before they had made their adjudication as to the necessity of the drain, etc. The commissioners gained nothing by the transaction. Had their meals not been paid for they could have charged the amount up in their expense account and made the same a lien upon the land. The payment on the part of the petitioner was but an advancement by him of a part of the expenses of the commissioners which he was liable for in case it should be adjudged that the drainage was unnecessary, and which he was entitled to have refunded to him in case it should be adjudged it was necessary.

It appears that one of the commissioners subpoenaed one Michael Jumph to appear before their commission and give his evidence, and paid him his witness fees therefor, and at the same time said that he was going to see other men with relation to their being sworn in the proceedings. Jumph testified that nothing was said to him as to the subject upon which his evidence was called for, or of the side on which his testimony was wanted. It would doubtless have been in better taste had the commissioners entrusted the subpoenaing of witnesses to some other person, but we do not understand that it was misconduct on their part to do it themselves. They were commissioned to make a personal view of the lands and to make inquiry as to the necessity of their being drained. They unquestionably" had the power to compel the attendance of witnesses before them for the purpose of ascertaining the necessary facts upon which to base their determination. Their duties in this respect are quite different from those of a court or referee trying an issue of fact between parties, where only the witnesses are sworn that are produced by the respective parties. The commissioners are charged with the duty of investigating the facts for themselves and determining the questions submitted to them.

A charge of misconduct is made upon the ground that the attorneys for the petitioners also served the commissioners as their attorneys. In the minutes of the proceedings kept by their stenographer it appears that the attorneys for the petitioners appeared as attorneys for the commissioners; and in the summing up of the evidence before the commissioners it is stated that the attorneys summed up for the commissioners. The • opposing affidavits, however, show that this entry was an inadvertence, that the attorneys only appeared for the commissioners as to the necessary legal steps that they were required by the statute to take, such as the giving of notices, etc., and that they in no case were consulted, or advised, or had any conversation with the commissioners in reference to any question of fact that was to be decided by them. Under the explanation given by the attorneys we discover nothing that amounts to misconduct, prejudice or bias. The order appealed from should be affirmed, with ten dollars costs and disbursements.

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


source: Caselaw Access Project

author: Bradley, J.

license: Public Domain

text:
    Henry C. Tucker, App’lt, v. Henry Pfau, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    Appeal—Justice’s court—New trial.
    The granting of a new trial by the county court on appeal from a judgment of justice’s court rendered upon default is so much a matter of dis~ cretion as not to be subject to review by another court.

      Appeal from order of the Erie county court, granting a new trial to the defendant before the justice of the peace by whom the judgment appealed from was rendered.

      Henry G. Adams, for app’lt; John R. Hazel, for resp’t.
   Bradley, J.

It is difficult to see in the affidavits on the part of the defendant any satisfactory excuse for his default in appearing before the justice on the day of the trial. It seems to have been assumed on the part of the defendant, without taking the trouble to obtain information on the subject, that the plaintiff had by his complaint demanded judgment for a sum exceeding fifty dollars and therefore that the defendant could by appeal and demanding it take a new trial in the county court. Code Civil Pro., § 3068. But as by his complaint the plaintiff sought to recover a less sum only, and as the defendant alleged no claim available against that of the plaintiff for a greater amount than fifty dollars, the defendant had no right by appeal to take such new trial, nor did the defendant make it clearly appear that manifest in j ustice was done him by the judgment. But upon appeal taken from a justice’s judgment by a defendant who has failed to appear at the time of the trial, and who “ shows by affidavit or otherwise that manifest injustice has been done, and renders a satisfactory excuse for bis default, the appellate court may in its discretion set aside the judgment,” and direct a new trial before the same or another justice of the county. Code Civil Pro., § 3064. It was by the exercise of the discretion which the county court assumed to have that the new trial was granted before the same j ustice in the present case. And while it may seem that the power of the county court was somewhat arbitrarily exercised in granting the new trial, it was, nevertheless, so much a matter of discretion as not to be the subject of review by another court. Wavel v. Wiles, 24 N. Y., 635; Reilley v. D. & H. C. Co., 102 N. Y., 383, 386; 2 St. Rep., 419; Tanner v. Marsh, 53 Barb., 438; Thomas v. Keeler, 52 Hun, 318; 23 St. Rep., 436.

The cases cited on the part of the plaintiff are mainly those of the county courts on appeals from justice’s judgments and of the court of common pleas of the city of New York on appeals thereto from the district courts of that city, to which appeals the provisions of the statute before mentioned are in like manner applicable. Code Civil Pro., § 3213. And, therefore, those cases do not necessarily furnish authority beyond the court of review in which is vested the discretionary power given to it by the provisions of § 3064 of the Code. It cannot be said that the affidavits on the part of the defendant were utterly barren of any facts for the consideration of the county court upon the questions to which its discretion was applicable.

And, therefore, the order must be affirmed.

Order of the Erie county court appealed from affirmed, with 'ten dollars costs and disbursements.

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


text:
    Philip Becker, Resp’t, v. The Town of Cherry Creek, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    Town bonds—Venue.
    An action to recover the amount due on town bonds is not within the provisions of § 982 of the Code, requiring certain actions to be brought in the county in which the subject of the action is situated; the subject of such action is not the establishment of a lien upon real property, as this was effectuated when the bonds were issued pursuant to the adjudication; but the bonds themselves are the subject of the action.
    Appeal from order of Erie special term, denying motion to change the place of trial from Erie county to the county of Chautauqua.

      C. R. Lockwood, for app’lt; Adelbert Moot, for resp’t.
   Bradley, J.

The action was brought to recover the amount due upon 131 town bonds of the defendant, alleged to have been duly issued pursuant to the statute in aid of the Buffalo & Jamestown Railroad Company in the year 1874.

The defendant, by its answer, puts in issue the allegations of the complaint in support of the validity of the bonds and of the right of the plaintiff to recover upon them.

The motion to change the place of trial from Erie to Chautauqua county was founded upon the contention on the part of the defendant that it was a local action, within the provisions of §982 of the Code of Civil Procedure, which provides that certain actions must be tried in the county in which the subject of the action or some part thereof is situated, and after mentioning some actions it includes “ every other action to recover or procure a judgment establishing, determining, defining, forfeiting, annulling or otherwise affecting an estate, right, title, lien or other interest in real property or a chattel real.” It is urged that this action comes within that provision of the section because by the statutory adjudication, if effectual, and duly executed by the issue of town bonds, they became a charge upon the real property in the town. If they are such they became so when they were issued. The purpose of the action is to enforce the liability to pay which it is alleged the town assumed by the issue of the bonds pursuant to such adjudication. They, with a view to that purpose, are the subject of the action. It is an action at law to recover a sum of money upon a contract which the plaintiff alleges was duly entered into and by which the town undertook to pay the amount mentioned in the instrument known as its bond. It is true that the trial may involve the consideration and determination of the question of the validity of the statutory adjudication pursuant to which the bonds were issued, and that if a recovery be had, the amount of it for the purposes of collection will be chargeable upon the property, real and personal, in the town, subject to taxation.

But the subject of the action is not the establishment of a lien upon real property, although the effect of a recovery by the plaintiff would be founded upon the fact that the bonds were such by force of the adjudication of 1872, and the judgment representing such recovery would be the means through which the performance of the undertaking to pay may be enforced.

The object of the statutory adjudication was consummated when the bonds were issued for the purpose in view; and in the present action it, and the proceedings upon which it was founded, are facts bearing upon the ■ question of authority to issue them, which authority sought to be conferred or created for ■ that purpose was effectual, or not so, to give validity to the bonds, which are the subject of the action in the sense applicable to that term. Knickerbocker Life Ins. Co. v. Clark, 22 Hun, 506; Hogg v. Mack, 53 id., 463 ; 25 St. Rep., 374.

The only question to be tried and determined upon the issues made by the pleadings is whether or not the bonds were pursuant to the statute duly issued as such and are valid obligations of the defendant; and the fact that the authority to issue them was dependent upon the preliminary proceedings, including the statutory adjudication, may within the issues be contested is not important for the purposes of the question presented upon the motion.

The order should be affirmed.

Order appealed from affirmed, with ten dollars costs and disbursements.

Dwight, P. J., concurs; Lewis and Haight, JJ., not sitting.


text:
    In the Matter of the general assignment of William G. Hevenor for the benefit of creditors to Hudson Ansley.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    Assignment fob. cbeditobs—Claim fob deficiency in bent of fbemises
    BE-LET AFTEB ASSIGNEE CEASED TO OCCUPY.
    An assignment in trust for the payment of “ debts due and to grow due ” refers only to debts then existing, including those payable in the future, which are fixed, definite and liquidated; it does not include a claim by the landlord of the assignor for deficiency in rent of the premises re-let after the assignee ceased to occupy them, as the existence or extent of liability therefor depended on the election of the landlord and could not be determined until the end of the term.
    Appeal of Charles D. Marshall and Julia A. Sherman as executors, etc., of R- J. Sherman, deceased, and Martha R. Sherman, claimants, from order of the Brie county court confirming report of referee disallowing the claim made by the appellants against the assignee, etc.

      Spencer Clinton, for app’lt; Baker, Schwartz & Dake, for assignee, resp’t.
   Bradley, J.

On July 13, 1891, William Gr. Hevenor made a general assignment for the benefit of his creditors to Hudson Ansley, and on the next day it was recorded in the office of the clerk of Erie county. After making preferences for certain creditors the assignor directed the assignee “ to pay and discharge in full, if the residue of said proceeds is sufficient for that purpose, all the debts and liabilities now due or to grow due from the said party of the first part with interest thereon.”

Prior to that time and on the 18th day of April, 1891, the appellants leased to the assignor a certain store and premises in the city of Buffalo for the term of five years from the 1st day of May, 1891 at the annual rent of $7,200, payable in monthly payments of $600 each, in advance. The rent was paid up to the time of the assignment, and by the assignee for the term he thereafter occupied the premises. At the expiration of that time the lessors took possession of them. And since then the lessors have assumed to rent the premises as agents of the lessee pursuant to the provision of the lease to the effect that if the premises should at any time during the term become vacant the party of the first part might enter and re-let the premises as the agent of the party of the second part, applying the avails thereof to the payment of the expenses and the rent due upon the lease, and hold the party of the second part for any deficiency. On November 1, 1892, the lessors, appellants, filed their claim, whereby it was represented that the amount of rent to that date under the lease was $10,600, and the amount received thereon, $5,463.50, leaving a balance of $5,136.50 unpaid.

The rejection of this claim by the assignee was supported by the order or decree from which this appeal is taken. The- question presented is whether the payment of deficiencies in rents derived from the premises subsequent to the assignment came within the direction in that respect given by the assignor in the assignment. If it did not, the claim was properly rejected.

An assignment in trust for the payment of debts due and to grow due refers only to debts then existing, including those payable in the future. Brainerd v. Dunning, 80 N. Y., 211.

Whether or not the assignor would be liable for any amount upon his lease on account of rent accruing subsequently to the time of the assignment and of the taking possession of the premises by the lessors, was dependent upon the election of the latter. Such liability was uncertain in extent, and whether there would at the end of the term be any or what amount for which he would be liable could not until then be definitely determined. That liability, such it was, was not a debt within the meaning applicable to that term in the assignment. In re Adams, 15 Abb. N. C., 61. It is difficult to see in its relation to the subject that the word “ liabilities ” was intended to have any more comprehensive meaning than is applicable to the word “debts.” The liabilities in view were those which, and the extent of them, as of the time of the assignment could be ascertained for the purpose of the execution of the trust, those debts which were existing at the time the assignment was made and then due orto grow due. This fairly imports fixed, definite and liquidated liabilities. Those liabilities are debts. By giving the more comprehensive meaning to the word “ liabilities,” as there used, might open a wide field of inquiry for the assignee, which evidently was not in the contemplation of the parties to the assignment. The fair interpretation of the words employed in the phrase in question in their relation to it and to the purpose of the instrument is such as to require the conclusion that the words “debts” and “liabilities” were synonymously used; and consequently the claim made by the appellants for the deficiency in the subsequently accrued rent of the premises did not come within the meaning of the debts and liabilities which by the assignment the assignee was directed to pay. In re Willis, 44 St. Rep., 470 ; In re Lewis, 81 N. Y., 421.

The order should be affirmed, with costs.

Lewis and Haight, JJ., concur.


author: Lewis, J.

text:
    Nora Crowe, Adm’rx, Pl’ff, v. The New York Central & Hudson River Railroad Co., Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1893.)

    Master and servant—Negligence—Railroads.
    Plaintiff’s intestate liad been for eight years in the employ of defendant railroad company in its yards at Rochester; about eleven o’clock at night he, with others, having just finished repairing a frog, started for the tool house carrying a lantern; the signal had been given and seen by intestate to resume business in the yard, which had been stopped for the repairs; while crossing a track intestate was struck by a car, which was moving slowly, and killed; the man next did not see the car until it struck; it carried no light and there was much noise in the yard. Intestate knew the manner of doing business in the yard, and that no lights were carried, or warning given of the approach of cars, and could have seen the car coming if he had looked. Held, that a nonsuit was properly granted. While great care and precaution are required on the part of railroad companies when they are moving cars in places where the general public have a right to pass, to in some manner announce their approach, a different rule obtains in the companies’ yards where cars are being distributed and trains made up; in such case no lights are required at night; the employes know the manner of doing business therein, and must assume the risks incident thereto.
    Motion by the plaintiff for a new trial upon exceptions ordered to be heard at the general term in the first instance, after a non suit at the circuit.

      Elbridge L. Adams, for pl’ff; Edward Harris, for def’t.
   Lewis, J.

This action was brought to recover damages sustained by the next of kin of the deceased by his death caused by the alleged negligence of the defendant. The deceased was at the time of receiving the injuries which caused his death'working for the defendant as one of a gang of men employed in the defendant’s yards in the city of Rochester, repairing car tracks. He had been thus employed by the defendant in said yards for eight or ten years immediately prior to the time of his death. Michael Carmody was the foreman of the gang, and as such had charge of all the repairs in the section embracing this yard, hiring and discharging the men working under him. He hired Crowe. Carmody and his men were called out about eleven o’clock of the night of-the 2nd of February, 1887, to repair a broken frog in the yard mentioned. There were some forty tracks in said yard, and at the place of the accident there were five parallel tracks ; four of them were known as tracks number one, two, three and four, numbered from the south northerly, and were known as the main tracks. There was in addition a fifth track north of track number four, and known as a switch track. It took the men about two hours to make the repairs, and during that time the traffic on tracks four and five was suspended. Carmody and the deceased each held a lighted lantern in his hand for the purpose' of furnishing light for the workmen during the progress of the work. When the work was sufficiently advanced to permit the track to be used, a switch engine which had been standing upon track number three waiting for the repairs to be made was signalled and passed over on to track five with some cars. The men stepped aside to allow them to pass, when they resumed the work; and when it was completed the proper signals were given and the business in the yard was resumed. These signals were given in the presence of the men composing the gang, including Crowe, and he must have known of them and of the passage of the engine and cars.

A number of the men called as witnesses testified that they knew that the cars were being moved along track five at the time the work was finished. The business of this switch engine was to shunt cars on the different tracks in the yard, including track five, and when it passed over on to track five on this occasion it proceeded to handle the cars upon track five, pushing or kicking them along said track past the place where the repairs had been made the cars after being thus kicked were left to proceed by their own momentum. When the men had completed the repairs they gathered up their tools for the purpose of taking them to the tool house, which was situated north of track five and 414 feet east of the frog. In going to the tool house they had to cross track five. There was ample room for them to walk north of said track. The space between tracks four and five was about seven feet wide. Crowe was the last man to leave the work. He was immediately behind James Knight, one of the gang. He had his lamp in his hand. Knight stopped just as he had crossed track five to pick up a tool he had dropped. He testified that Crowe was immediately behind him, and that when Crowe reached the middle of track five he was struck and knocked down and killed by a coal car that was moving slowly eastwardly on track five. Knight did not see the car until it struck Crowe; whether he looked to see if it was approaching does not appear. Aided by the light of his lantern Crowe unquestionably would have seen the car if he had looked' in its direction. The car had no light upon it and no notice was given of its approach. There was considerable noise at the time caused by the moving of trains. Crowe knew from the manner in which business had been done in the yard that cars at any moment were likely to pass along on track five in the same manner as this one did at the time of the accident. He knew that it was not customary to give any warning of their approach, and that it' was not the practice to have lights upon them, and that it required constant watchfulness and vigilance on his part when moving about the yard to avoid a collision with the cars. Attempting to cross the track under such circumstances without looking to see' if a car was approaching was a surprisingly careless and negligent act. The plaintiff failed to prove that the deceased was free from negligence contributing to his injuries. She also failed to show any negligence on the part of the defendant. The business in the-yard was being conducted in the same manner that it had been for years.

It is suggested by the plaintiff that there should have been a light placed upon the car. This contention would require a light to be placed upon each and every car being moved in such a yard as this. The time consumed in handling such a large number of lamps and the number of men that would be required to do the work would make such a rule obviously impracticable. There is no suggestion that any railroad company ever attempted to-adopt such a rule, or that it would be practicable if adopted. To require the company to have a man upon each car, or a man to precede each car to announce its approach, in such a yard &s-this, would be impracticable. Great care and precaution are required on the part of railroad companies when they are moving cars in places where the general public have a right to pass, to in some manner announce their approach ; but a different rule obtains in the company’s yards, wher ecars are being distributed and trains made up. The employes about such yards understand' the situation; they know the manner of doing the business therein; that cars frequently pass along without notice" of their approach, and they assume the risks incident to the business as thus conducted.

Whether the foreman left the work when it was completed, or a few minutes before, is not important. It was completed when Crowe left, and- he understood the situation. The men were properly protected while the work was progressing by the two lighted lanterns heretofore mentioned. It is suggested that the work was not completed until the men had arrived at the tool house with their tools, and that until then they were entitled to some special protection, to which they might not be entitled, perhaps, when engaged in other business about the yard. No reason is suggested for such a rule and none occurs to us. They were entitled when going to the tool house to the same protection and care on the part of the company to which they were entitled when moving about the yard performing their ordinary daily business.

There was no question for the jury. The nonsuit was properly granted, and the motion for a new trial should be denied and judgment ordered for the defendant upon the nonsuit.

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


author: Freedman, J.

text:
    The People ex rel. Patrick Baker, App’lt, v. The Coachmen’s Union Benevolent Association of the City of New York, Resp’t.

      (New York Superior Court, General Term,

      Filed July 3, 1893.)

    Associations—Membership—Waiver of notice of charges.
    Although a member of an association, according to its by-laws, may be entitled to be served with notice and a copy of the charges before expulsion, yet it is competent for him to waive these requirements; and by attending the meeting and making no objection on any such ground, and by proceeding to defend himself on the merits and speaking in opposition to the resolution of expulsion, he does waive them.
    Appeal from order denying relator’s application for a writ of mandamus directing respondent to restore him to membership.
    Relator was expelled at a meeting of the defendant association on the ground that he had wrongfully claimed sick benefits. No written charges were served on him, nor any notice that charges had been preferred. He was present at the meeting at which he was expelled, but made no objection on the ground of want of notice, took part in the trial of the charges and spoke in opposition to the resolution of expulsion.

      Geo R. Carrington, for app’lt; Thaddeus D. Kenneson, for resp’t.
   Freedman, J.

Assuming, but not deciding, that the learned judge below erred in bolding the judgment of the city court, in the action brought by Baker to recover for sick benefits, to be a bar to the present application, the denial of the application for a writ of mandamus may still be sustained for the following reasons, viz:

Although the relator, according to the requirements of the constitution and by-laws of the association, should have been served with a certain notice and a copy of the charges in writing, it was competent for him to waive these requirements, and by attending the meeting which tried him, and making no objection on any such ground or on the ground that he was not prepared to enter upon his defense, but proceeding to defend himself on the merits and speaking in opposition to the resolution of expulsion, he did waive them. By voluntarily appearing and submitting to the jurisdiction of the meeting without • protest and litigating the issue on its merits, he precluded himself on the point he now seeks to raise. In this respect the case at bar is entirely different from The People ex rel. Deverell v. The Musical Mutual Protective Union, 118 N. Y., 101; 27 St. Rep., 963. In the case last referred to the relator appeared and denied the jurisdiction and then withdrew.

In the next place the by-laws of the association do not require a vote of two-thirds of all the members to an expulsion, but only two-thirds of the members present at a meeting regularly constituted for the transaction of business. Twenty-five members present constitute a quorum for the transaction of business. In this aspect the vote was sufficient. But if it did require two-thirds of all the members of the association at the time of the passage of the resolution, the relator failed to establish by competent proof that forty-two, the number which voted for his expulsion, were insufficient to constitute such two-thirds.

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

GflLDERSLEEVE, J., concurs.


author: Gildersleeve, J.

text:
    George H. Wooster, App’lt, v. Horatio Bateman, Impl’d, Resp’t.

      (New York Superior Court, General Term,

      Filed July 3, 1893.)

    ■1. Bill of particulars—Breach of contract.
    In an action for breach of contract to pay for goods by conveyance of real estate, where the allegation of damage is in general terms, although the defendants are familiar with the transaction out of which the claim arises, they are entitled to a bill of particulars of the items that go to make up the damage alleged.
    8. Motions and orders—Affidavit for order to show cause.
    A failure to state in an affidavit for an order to show cause that no previous application has been made is not an irregularity which compels the court to refuse to grant the order, or to vacate it after it has been granted.
    3. Same.
    A failure to state in such affidavit the facts showing that an order to show cause is necessary affects only the order to show cause, and objection should be taken at special term; otherwise it is waived.
    Appeal from order of special term, granting motion for bill of particulars.
    Action for breach of contract by which plaintiff agreed to sell certain personal property to defendants, to be paid for by conveyances of real estate by two of the defendants, and a payment of $10,000 in satisfactory value by the other. The complaint alleged that plaintiff delivered the personal property, but that defendants failed to complete the contract, to his damage $7,500.

      W. T. B. Millikin (Thos. B. Browning, of counsel), for app’lt; Arnoux, Ritch & Woodford ( Wm. H. Arnoux, of counsel), for resp’t.
   Gildersleeve, J.

After a careful examination of the papers before us, we are of opinion that order appealed be affirmed. While it may be fairly said that the defendants are familiar with the transactions out of which the plaintiff’s claim arises, they are entitled to be informed of the particular damage for which a recovery is sought or the items that go to make up the damage of $7,500, alleged in general terms in the complaint. With such information, surprise will be avoided; the defendants can prepare to meet the plaintiff’s claim ; and the scope of the inquiry upon the trial will be reasonably restricted. Such is the purpose of a bill of particulars.

The provisions of the order are reasonable, and in accordance with the prevailing decisions on the subject.

The learned counsel for the appellant contends that the order should be reversed because of the irregularity or insufficiency of the affidavit upon which the order to show cause was granted. But this appeal is not from the order to show cause; it is from the final order of the special term granting the motion for a bill of particulars. Any objections to the regularity of the papers upon which the order to show cause was granted should have been addressed to the special term. In so far as the motion papers affect the final order of the special term, we are of the opinion that there is not any irregularity of sufficient importance to warrant a reversal of the order.

The learned counsel for the appellant states the alleged irregularties to be, (1) that “ the affidavit does not state that no previous application has been made for the order to show cause, as required by rule 25 of the General Rules of Practice; ” and (2) that “ the said affidavit does not state any facts showing that an order to show cause is necessary, and without such statement the appellant cannot be deprived of the usual notice of motion.”

With regard to the first assignment of irregularity, the appellant’s contention is not well taken. Rule 25 of the General Rules •of Practice provides that whenever application is made ex parte, on affidavit, to a judge or court, for an order, the affidavit shall state whether any previous application has been made for such order, etc., and for omission to comply with this rule, any order made on such application may be revoked or set aside. But the failure to state that no previous application has been made is not an irregularity which compels the court to refuse to grant the order, or to vacate it after it has been granted. Bean v. Tonnelle, 24 Hun, 353. In point of fact, moreover, the affidavit states that a previous application has been made and denied, but that leave was granted to renew the same upon proper affidavits.

With respect to the other assignment of irregularity, it will not be denied that the affidavit is insufficient under rule 37 of the General Rules of Practice and § 780 of the Code. But, as we have above intimated, this irregularity only affects the order to show cause, and the objection should have been taken at the special term; and, as it was not taken, it must be held to have been waived.

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

Ereedman, J., concurs.


author: Per Curiam.

text:
    The Germania Fire Insurance Co., App’lt, v. The Home Insurance Co., Resp’t.

      (New York Superior Court, General Term,

      Filed July 3, 1893.)

    Insurance (fire)—Change of interest—Partnership.
    After insurance of the stock of goods of an individual under a policy providing that if the property was sold or transferred, “or any change takes place in title or pos=ession,” it should he void, the person insured entered into a partnership with another and transferred the goods insured to the firm without the knowledge of the insurer. Held, that this constituted a change of interest, within the meaning of the policy, rendering it void.
    Appeal from a judgment rendered at a trial term without a jury on an agreed statement of facts.
    On the 1st of May, 1873, John A. S. Verdier procured an insurance by the defendant company on his stock of hardware, tin, iron, stoves, and such other articles as are usually kept on sale by him as a hardware and yankee notion dealer ” contained in his store in Grand Rapids, Mich.
    This insurance was for one year.

      On the 1st of May, 1874, the same was renewed for another year, and $37.50 was paid and a renewal receipt taken.
    On the 4th of May, 1874, the said Yerdier and one William A. Brown entered into a copartnership agreement, whereby Yerdier had an interest of seven-tenths and Brown an interest of three-tenths.
    On the 4th of June, 1874, the stock was partially destroyed by lire, whereby a loss accrued to the amount of $6,818.20.
    There was insurance in other companies to the amount of $7,744.31, as to which their contributory share is conceded by way of deduction.
    On the 4th of November, 1874, the plaintiff, the Germania Company, paid its share of the loss and took a joint and several assignment by Yerdier & Brown of their claim against the-defendant.
    It is conceded that the stock was transferred by Yerdier toYerdier & Brown without the knowledge of the defendant.
    The following is the opinion of the court below:
    McAdam, J.—Questions of forfeiture in consequence of transfer of interest have arisen in almost every conceivable shape, mainly for the reason that the phraseology of the so-called alienation clause is diverse in different policies. In May on Insurance (3d ed., vol. 1, pp. 552-556) are collected fifty variations of this clause,, and the reported decisions must be read in the light of the particular language employed in the policy construed. ■
    In the present instance the condition of the policy is that “ if the property be sold or transferred, or any change talces place in title or possession, * * * the policy shall be void.”
    Yerdier, the person insured, by taking in Brown as a partner, made the corpus of the effects joint property. Bach acquired a concurrent title in the whole, Story on Part. § 91, but neither had any exclusive rights to any part of the stock in trade, so as to-enable him to separate it from the common property and sell it as his own. Rogers v. Batchelor, 12 Pet., 221. Indeed, Yerdier ceased to have any separate interest in the corpus, and the share of each partner could be thereafter determined only after the partnership debts were paid and accounts taken. Menagh v. Whit-well, 52 N. Y., 158. See also Williams v. Whedon, 109 N. Y.,. 833; 15 St. Rep., 265; 5 Wait’s Act. & D., 119. Bach in effect became possessed of the whole property for all the purposes of the partnership until they were in. some mode accomplished. It would be solecism to hold that the formation of this partnership and the introduction of Brown as part owner did not work a. change of both title and possession of the property insured. True, Yerdier might have insured his interest as a copartner in the firm, and recovered any loss sustained in that character. But that is not the case. He did not do that; he insured as sole owner, under a condition that when he ceased to bear that relation to the property,the policy was to become void. That condition was a valid one, and however much the law abhors forfeitures, it is a material part of the contract, and must be respected and enforced. The rule is not unreasonable, for the risk assumed by the insurers depends upon the character and circumstances of the insured. They have a right to know with whom they are contracting, and to whom they are to account, and no new party can be thrust upon them contrary to the terms of their contract, which is personal in its nature and does not pass with the title to the property. These conclusions accord with the authoritative decisions upon the subject. See Brennan v. London A. Co., 20 Fed. Rep., 657; Malley v. Aitantic Ins. Co., 51 Conn., 222; Biggs v. Ins. Co., 88 H. C., 141; Hathaway v. State Ins. Co., 64 Iowa, 229; Card v. Phoenix Ins. Co., 4 Mo. App., 424. The earlier Iowa case of Cowan v. Ins. Co., 40 Iowa, 551, holding that the portion of the property sold to the incoming partner would lose the benefit of the insurance, but that the policy would remain operative to protect the interest of the vendor still remaining in him, has been unfavorably criticised, Malley v. Atlantic Ins. Co., supra, and subsequently the Iowa court explained that the Cowan case was decided on the ground that the alienation clause was not pleaded as forbidding “ a change in title or possession,” but only as forbidding an entire sale or transfer. Hathaway v. State Ins. Co., supra ; and as to same distinction see Blackwell v. Ins. Co., 21 Ins. L. J., 97. The Cowan case must be rejected as •authority here. The case of Hoffman v. AEtna Ins. Co., 32 N. Y., 405, is not in conflict with the views expressed. There,.a a policy was issued to a firm, and one of the partners, upon retiring, transferred his interest to the remaining partners, and the court held that the effect of the usual proviso against sales, in policies of insurance, is not to interdict sales of the owners as between themselves, but only sales of proprietary interests by the parties insured to third persons. The court did not decide that a stranger could be introduced into the firm and made a party to the contract of insurance without the consent of the other contracting party. That question was not before the court, although it intimated strongly against the feasibility of any such scheme. In the case last cited the insurance company had accepted all three members of the firm as parties entirely satisfactory to entrust with possession and control. In the present case the company had no knowledge of the transfer to Brown until after the fire; had no opportunity of passing on his qualifications as custodian •of the property, and never assented to his introduction as a party to the contract. The company may have been willing to insure Verdier so long as he was the exclusive owner and custodian of the property, but when the change of interest occurred and possession was to be turned over to a copartner with equal power of •control, the company became so far affected by the transfer that the policy became void, unless it first assented to the change. Ho such consent having been given, neither Verdier nor his partner, nor the plaintiff as their assignee, have any right of action whatever in the policy.
    It follows that the defendant is entitled to judgment, with costs.

      G. W. Cotterill, for app’lt; Richards & Heald (George Richardsf of counsel), for resp’t.
   Per Curiam.

For the reasons set forth in the of the-learned court below, the judgment appealed from is affirmed, with-costs.

Freedman and G-ildersleeve, JJ., concur.


text:
    Horace B. Fry, Resp’t, v. The Manhattan Trust Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed July 3, 1893.)

    Bill of particulars—Special contract.
    In an action upon a special contract to pay a specific sum for services-rendered in bringing about a particular result, the plaintiff should not be required to furnish a bill of particulars further than to specify whether any of the agreements or requests made were in writing, and if so their tenor, date and effect and by whom signed; he cannot be required to-particularize each service contributing to the result.
    Appeal from an order denying in part defendants’ motion for a bill of particulars.
    The following is the opinion of the special term :
    McAdam, J. The plaintiff, a promoter of financial and business companies, sues to recover $59,000, on a special contract to pay him that amount for various services rendered by him in bringing about the incorporation of the firm of John B. Stetson & Co., with an authorized capital of $2,700,000, and for associating the-defendants with the enterprise, out of which they realized large-profits upon the sale of the stock, from which profits the $59,000* became payable. In other words, the defendants became a sort of syndicate to float the stock, and the moneys the members made were largely the result of the plaintiff’s introduction, influence and efforts. The defendants want an itemized bill of the various-services rendered, how, when, to whom; of the different requests made by the defendants, and which of them; whether oral or in writing, etc. The evident object of the bill is to limit the plaintiff’s proofs at the trial. The action being on a special contract to pay a specific sum for particular services rendered, the items-would not seem to be necessary. Their performance required successive acts, all contributing to a completion, and the plaintiff cannot be required to particularize each service so contributing. 2' Robt., 683; 4 Abb. N. C., 324; 55 Barb., 464. A party should never be required to make specification of matters which from their inherent character are not capable of exactitude, or which constitute evidence rather than substantiate facts. Another consideration is, that the ordering of bills of particulars must be cautiously exercised, that the plaintiff may not be unreasonably embarrassed at the trial by being limited to the identical particulars stated. Many instances of this kind have occurred lately, where the parties had to be remitted to special term for relief. It is proper, therefore, to raise the danger signal. The motion- will be granted so far as to require the plaintiff to specify whether any of the agréments or requests are in writing, and if so their date, tenor and effect, and by whom signed. This is almost transcending the border line. In other respects the motion will be denied. Bo costs.

      Strong & Cadwallader, for Manhattan Trust Co. et al., app’lts ; Bartlett, Wilson & Hayden, for Davis et al., app’lts; Leopold Wallack, for resp’t.
   Per Curiam.

|The order appealed from is affirmed, with ten dollars costs and disbursements, on the opinion of the learned judge at special term'.

Freedman and Gildersleeve, JJ., concur.


author:
      McAdam, J.
      Freedman, J.

text:
    Michael Toomey, Resp’t, v. The Delaware, Lackawanna & Western R. R. Co., App’lt.

      (New York Superior Court, General Term,

      Filed July 3, 1893.)

    1. False imprisonment—Damages.
    The damages to be awarded in cases brought to recover damages for wrongfully causing plaintiffs arrest and setting on foot criminal prosecution must in the nature of things be left largely to the experience and sound judgment of a jury.
    2. Same.
    In such an action, plaintiff, an elderly man, was awarded §500, -while his son, in a similar action, was awarded six cents. Held, that the verdict of §500 would not be disturbed on appeal.
    3. Same.
    The court ought not to interfere with the assessment of damages by a jury further than to see that they have not abused the trust reposed in them or violated some settled rule of law.
    4. Same—Charge.
    Taking an elderly man into custody and marching him through a crowded thoroughfare, in charge of an officer, depriving him of his liberty, away from friends and facilities for bail, putting him on trial, causing fear and suspense, are acts sufficient to call for substantial damages, and in an action for damages for such wrongful act, the court may properly charge the jury that if they find for the plaintiff they must award substantial damages.
    5. Same—Railroad—Duties of conductors.
    It is the duty of an assistant conductor of a train to keep the conductor informed as to the collections made, that demands may not be made twice of the same passenger, and the implication of knowledge comes from the duty imposed of communicating it.
    6. Same.
    In a case where plaintiff had been allowed to complete his journey, and was then arrested for stealing a ride, the court was requested to charge by defendant that “ the plaintiff, when applied to by the conductor, was bound to produce a proper and valid ticket as evidence of his right to ride upon the train, or pay his fare.” The court replied: “If he could do so, he was. If he had had a ticket, and lost it, it was a subject of explanation. It was his duty either to produce a proper ticket or pay his fare, or make some reasonable explanation why he didn’t do it.” Held, that the charge was a proper answer to the request.
    Same—Malice.
    A charge in such case that if the conductor made the complaint for the sole purpose of collecting a debt, and to prove himself right, the jury must find malice, is correct.
    Appeal from judgment entered on verdict in favor of plaintiff, and from order denying motion for a new trial.

      Hamilton Odell, for app’lt; Wolf & Hodge, for resp’t.
   McAdam, J.

On September 27,1890, the plaintiff in company with his son, Andrew J. Toomev, and a friend, Mr. Peppard, made a journey on the defendant’s road to Orange. Upon their return trip a dispute arose as to whether the tickets offered to the conductor entitled them to travel on his car. The dispute continued until the train reached Hoboken, and there the trio were arrested, under color of a New Jersey statute, which authorizes the apprehension of any person who attempts to travel in a carriage of any railroad company without having paid his fare, and with intent to avoid payment thereof. The offender forfeits to the company a sum not exceeding five dollars, which “fine” may be imposed “by any justice of the peace before-whom such person shall be brought on complaint made on oath or affirmation, and after a summary hearing of the facts and circumstances.”

The magistrate discharged the plaintiff and his companions, whereupon they brought separate suits against the" defendant to recover damages for causing their arrest and setting on foot the criminal prosecution aforesaid. The trials resulted in verdicts for the plaintiffs, but for different amounts. Andrew J. Toomey, the son, recovered six cents, which recovery the court at general term sustained upon the ground that the question as to the amount of damages, substantial or nominal, was without objection left to the good judgment of the jury, and there was no legal reason which required the court to disturb their finding. The present appeal is from a judgment of $500 recovered by the father, an elderly gentleman, who claims to have keenly felt the indignity of his arrest and suffered considerably from it. The fact that the son recovered six cents doek not prove that the father should have been similarly dealt with, nor does the fact that the jury awarded the latter $500 prove that the verdict in the son’s favor was too small. The jury in each case separately fixed the amount. The damages to be awarded in cases of this character must in the nature of things be left largely to the experience and sound judgment of a jury, and they naturally vary with the age and condition in life of the injured parties and the impression created on the minds of the jury. In Wood’s Mayne on ¡Damages, 1st -Am. ed., § 47, the author, speaking of the measure of such damages, says: “Where the person or character is injured, it is difficult, if not quite impossible, to fix any limit, and the verdict is generally a resultant of the opposing forces of the counsel on either side, tempered by such moderating remarks as the judge may think the occasion requires.” The verdict does not bear the evidence of bias or prejudice, and though substantial, is still reasonably moderate in amount, and one we are indisposed either to criticise unfavorably or disturb.

The court ought not to interfere with the assessment of damages by a jury further than to see that they have not abused the trust reposed in them or violated some settled rule of law.

The exceptions taken relate wholly to the charge and the requests and refusal to charge.

First. The defendant requested the court to charge that “If there was probable cause for making the complaint against the plaintiff, yet, if in making it the conductor did not act with a malicious purpose, or with actual malice towards the plaintiff, the defendant is entitled to a verdict.”

The court charged the request, striking out the word “actual.” The request after all was substantially charged, and the jury were intelligently told that if there was no malicious purpose or malice on the part of the conductor towards the plaintiff, he could not recover. The word omitted did not detract from the force of the request made, for the jury had not been instructed in the technical distinction between legal and actual malice, and as applied to this case in the form submitted there was none. Malice in fact is found by the jury, malice in law by the court, and that submitted to them was necessarily of the former character, for the court made no finding and gave no binding instructions as to malice in law.

Second. The trial judge charged, at plaintiff’s request, “ that the uncontroverted evidence is that the damage was substantial and not nominal ” The defendant urges with earnestness its exception to this part of the charge, in view of the finding of nominal damages in the action by the plaintiff’s son, and the affirmance of that judgment by the general term. No such request was made in the action by the son, and the entire question of damages, nominal or substantial, was without objection left to the jury for their determination, and under such circumstances the general term was indisposed to interfere with a result which might have been guarded against and, perhaps, obviated by a specific request to charge that substantial damages must be awarded if they found for the plaintiff. The question, however, was squarely presented on the present trial, and the judge presiding met it with the direction that if they found for the plaintiff they must award substantial damages. We find no error in the instruction. Field on Damages, § 687; 3 Sutherland on Damages, 703. Taking an elderly man into custody and marching him through a crowded thoroughfare in charge of an officer, depriving him of his liberty, away from friends and facilities for bail, putting him on trial, causing fear and suspense, are acts sufficient to call for substantial rather than the mere nominal damages sometimes awarded for a mere technical trespass or wrong-doing.

Third. The trial j udge charged at plaintiff’s request that Burritt, the conductor, was chargeable with Slater’s knowledge that the plaintiff had delivered unpunched tickets to him.” Slator was the assistant conductor aiding Burritt in collecting tickets. A delivery to Slator was, therefore, tantamount to a delivery to Burritt, and the act was so regarded and intended. Under the circumstances the charge was right. It was the duty of the one to keep the other informed as to the collections made, that demands might not be made twice of the same passenger, and the implication of knowledge comes from the duty imposed of communicating it.

■Fourth. The defendant’s counsel requested the court to charge that “ the plaintiff, when applied to by the conductor, was bound to produce a proper and valid ticket as evidence of his right to ride the train, or his fare.” Such a regulation is certainly reasonable, and for non-compliance therewith an offending passenger may be excluded from the car. Hibbard v. R. R. Co., 15 N. Y., 455; Townsend v. R. R. Co., 56 id., at p. 300; Homiston v. R. R. Co., 52 St. Rep., 1. No such right was exercised here ; on the contrary, the plaintiff was allowed to complete his journey, and was then arrested for stealing a ride. The trial judge replied to the request in these words: “ If he could do so, he was. If he had had a ticket and lost it, it was a subject of explanation. It was his duty either to produce a proper ticket, or pay his fare, or make some reasonable explanation why he didn’t do it.” While the rule is that as between conductor and passenger the ticket is the only evidence of the passenger’s right to be carried, 2 Wood’s Ry. Law, § 350; Thomp. on Carr., 337, §3, and explanations are not always to be taken, yet exceptions thereto will be found in several well considered cases in which it was held that the passenger has the right to make any explanations that will assist in determining his rights. R. R. Co. v. Bray, 125 Ind., 229; 25 N. E. R., 439; R. R. Co. v. Conley, 32 N. E. R., 96; R. R. Co. v. Fix, 88 Ind., 381. In R. R. Co. v. Bray, supra, the passenger had purchased a round trip ticket, and the conductor had retained the return coupon on the going trip by mistake, and the passenger did not discover the mistake until he presented to the conductor on his return trip the going coupon that he had retained, instead of the return coupon. The court held that under such circumstances the passenger had a right to be carried on his return trip on presenting the going coupon with proper explanation. See, also, R. R. Co. v. Holdridge, 118 Ind., 281.

The charge, in view of the facts and the cases cited, was a proper answer to the request, for it left the jury free to determine whether the plaintiff really had the proper ticket and how he had disposed of it, and whether, in view of the explanations given, the conductor acted with or without probable cause, in good faith or from malicious motives, in causing the plaintiff’s arrest after the journey was completed.

Fifth. The plaintiff’s counsel requested the court to charge, “ that if Burritt (the conductor) made the charge of a criminal complaint for the sole purpose of collecting a debt, and to prove himself right, they must find malice.” This was correct. Lynch v. R. R. Co., 90 N. Y., 77, 85. The arrest was justifiable only on the theory that the conductor in putting the plaintiff into custody was bringing him to justice pursuant to the New Jersey statute, before referred to, and for the purpose of being dealt with according to its provisions.

The five exceptions discussed are all that were urged on the argument against the judgment, and, for the reasons stated, we hold them to be without merit. The defendant was clearly liable to an action for the acts of the conductor, Rounds v. R. R. Co., 64 N. Y., 129, 134; Mott v. Consumers Ice Company, 73 id., 543, 547; Lynch v. R. R. Co., 90 id., 77, 86, and the damages not being excessive, the judgment and order appealed from must be affirmed, with costs.

Freedman, J.

I concur, but desire to add that, although the jury were directed to give substantial damages in case they found for the plaintiff, they were, by another part of the charge, expressly confined to give compensatory damages only.


text:
    Shepard Knapp, Substituted Trustee, Resp’t, v. The New York Elevated Railroad Company et al., App’lts, and James Hooker Hamersley et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed July 3, 1893.)

    31. Railroad—Elevated—Damases to rentals.
    On the trial of an action to restrain the operation of an elevated railroad in front of plaintiff’s premises, and for damages by reason of the construction and operation of said railroad, it appeared that prior to the time the road was built the premises rented for $5,000 per year, that the year the railroad came the property was repaired, but had no tenant, and that it has never since rented for more than $2,700; the testimony clearly demonstrated that the diminution of rent was not peculiar to the property in suit. Held, that the referee’s estimate of rental damage per annum, §900, including interest, was not excessive.
    S. Same—Limitation.
    One H., the owner of a moiety of certain premises, declined to become a plaintiff in such action, and was made a defendant. Prior to the trial of the action H. died, and a motion was made to bring in his representatives; they did not appear on the motion, and on the election of defendant railroad company, they were by order made parties defendant, and answered the complaint claiming relief similar to plaintiff, nearly two years after the commencement of the action. Held that the rule of limitations applicable to the claim of the defendant representatives of H. did not differ from that which controlled plaintiff’s claim.
    3. Same—Parties—Waiver oe objection.
    In such case, the defendant railroad company after the plaintiff had rested moved to dismiss the complaint and the claims of the co-deferidants, on the ground that all the parties were not before the court, the co-defendants being trustees and the remaindermen not having been brought in. The objection had not been raised by answer or demurrer, and the defendant knew of their existence at the time it elected to bring in the trustees. Held, that the objection was raised too late.
    4. Same—Remaindermen.
    Remaindermen are not proper parties to an action where no fee damages, but only past damages are awarded.
    Appeal by defendants, the railroad companies, from a judgment entered upon the report of a referee.
    This action was commenced on April 2, 1889, by Shepard Knapp, as trustee for Andrew S. Hamersley, to restrain the operation of the elevated railroad of the defendants-appellants herein in front of No. 116 Pearl street, in this city, and for damages sustained by reason of the construction and operation of said railroad in front of said premises. The case was tried before a referee, who rendered judgment in favor of the plaintiff, Shepard Knapp, as trustee, and also in favor of the defendants-respondents, Hamersley and others, trustees, awarding an injunction against the operation of the railroad in front of said premises, and also awarding damages to the plaintiff and to said defendants-respondents, Hamersley and others, against the said railroad companies. From this judgment, entered on the report of said referee, the defendants, the railroad companies, appeal to the general term.
    The legal title to one undivided half of the premises in suit Tested in the plaintiff, Shepard Knapp, as substituted trustee under the will of Thomas Hamersley, deceased, for the life of Andrew S. Hamersley; and upon the death of said Andrew S. Hamersley, the title to said one undivided half of said premises will vest in the children then living of said Andrew S. Hamersley. The children now living are Andrew S. Hamersley, Jr., William L. Hamersley and Odile H. Southwick, all of full age. The other moiety was the property of John W. Hamersley, who declined to become a plaintiff, and was made a party defendant herein, at the commencement of the action.
    Prior to the trial of the action the said John W. Hamersley died, and a motion was duly made to bring in his representatives as parties. Said representatives did not appear upon the motion, and it was left to the attorneys for the defendants, the railroad companies, or consent of the plaintiff, to elect whether the executors and trustees of the late John W. Hamersley should be made parties, or whether the action should continue without bringing them in. The attorneys for the railroad companies elected that these representatives be brought in, and an order making them parties defendant was, therefore, duly entered, and by said order it was provided that no supplemental summons or complaint need issue. Thereupon the parties so brought in by said order as defendants in the action, under the practice prescribed in the Code, §521, answered the complaint, claiming relief similar to that demanded by the plaintiff, and served copies of their answer upon the plaintiff and upon the defendants, the railroad companies. The death of the said John W. Hamersley vested the legal title to the moiety that he had owned at the time of the commencement of the action in the defendants James Hooker Hamersley, Courtlándt de Peyster Field and John H. Livingston, executors and testamentary trustees under the will of John W. Hamersley, deceased, for the life of Helen E. H. Stickney. Hpon the death of Helen R. H. Stickney, the title to said moiety will vest absolutely in the lawful issue of said Helen E. H. Stickney, and in default of such issue in James Hooker Hamersley .and Virginia Field, and their issue. The railroad companies, in their answer to the complaint, and also in their answer to the answer of the newly made parties defendant above mentioned, set forth the usual defenses in elevated railroad cases, including the statute of limitations, and pleaded the statute as to a period of six years preceding the commencement of this action. The referee found that the construction and operation of the elevated railroad in front of the premises in question caused substantial damage both to the fee and to the rental value of the premises, and he awarded $8,692.50 damages to the rental value, which damages included all interest, and he divided the damages equally between Shepard Knapp, as trustee, and the representatives of John W. Hamersley’s estate, and directed an injunction limited to the life of Andrew S. Hamersley and Helen E. H. Stickney, and the survivor of them, unless within three months from notice of entry of judgment the defendants, the railroad companies, procured the property to be condemned according to law. The referee did not find the amount of diminution of fee value, and no condition predicated upon any estimate of the diminution of fee value was affixed to the injunction. The court awarded costs, and an allowance of five percent, upon the recovery to the plaintiff, and also to the representatives of John W. Hamersley, deceased, defendants-respondents, against defendants-appellants, the railroad companies.

      Stewart & Sheldon, (J. Aspinwall Hodge, Jr., of counsel), for pl’ff. resp’t; A. P. & W. Man, (.Henry. H. Man, of counsel), for def’ts. resp’t; Davies, Short & Townsend, (Julien T. Davies and John S. Wood, of counsel), for app’lts.
   Gildersleeve, J.

learned counsel for - the defendants-appellants challenge the judgment, and assign numerous errors, each of which they claim calls for a reversal. We will take up such objections as seem to call for discussion in the order in which they are presented for our consideration in the able brief of the counsel for defendants-appellants.

Mrst It is claimed that “ the amount fixed by the referee as-past damages is excessive and unjust, and altogether unsupported by legal evidence.”

The premises in question are at Hanover square, on the southerly side of Pearl street, near Old Slip, and are twenty-four feet four inches in width in front, twenty-three feet two inches in width in the rear, and about eighty-six feet deep. The premises are occupied by an old four story building, which, down to 1878, when the railroad came, rented, as appears by the testimony, to a single tenant for $5,000 per annum. The year the railroad came $3,800 were spent in improvements, and the property had no tenant. Never since the coming of the railroad has the annual rent exceeded the sum of $2,600 to $2,700. The actual difference between the rent in 1878 and the rent in 1891, when the testimony was taken, was $2,400. Nothing could be clearer than that since the coming of the railroad there had been a diminution of rent.

The problem the referee had to decide was what part of the diminution was attributable to the railroad. That the diminution of rent was not peculiar to the property in suit, and therefore did not arise from any conditions not common to property on Hanover square, a careful examination of the testimony clearly demonstrates. The referee’s report was dated November 29th, 1892, something more than three years and seven months after the action was commenced, and the period, therefore, for which the damages were awarded, was something more than nine years and seven months. The average period for which appellants must be charged with interest is more than four and one-half years. The referee estimated the rental damage per annum, including all interest, at about $900. We consider the estimate a moderate one, and that there, is ample evidence to support the award of $8,692.50, for rental damage.

Under this point, it is claimed on behalf of appellants that such damages, if any, as the defendants-respondents are entitled to recover, should be estimated from six years prior to the service of their answer, and not from the date of the service of the summons ; that in awarding to them exactly the same sum as given to the plaintiff, the referee erred. The answer of the defendants-respondents was served on March 17th, 1891, nearly two years after the commencement of the action. By the plea of appellants, in which they claim to set up the statute of limitations in their answer, they allege that “ the pretended cause or causes of action set forth in the answer of the co-defendants herein did not, nor did any of them, accrue to the plaintiff herein or to his predecessor or predecessors in title, within six years next preceding the commencement of this action.” The cause of action to which the objection now under consideration is raised never belonged to the plaintiff. The plea seems to be defective, but assuming that it is sufficient to interpose the defense of the statute of limitations to the co-defendants’ claim, we are of opinion that the rule of limitations applicable to the co-defendants’ claim does not differ from that which controls the plaintiff’s claim. The co-defendants’ predecessor was a party to the action at the time it was commenced, and the rights of his representatives are such as belonged to him at the commencement of the action, so far as relates to the statute of limitations.

The time when the action was commenced as to John W. Hamersley (to whose position as party to the action, as well as to whose position as owner of the moiety, these co-defendants succeeded), must be held to be the time when it was commenced against the railroad companies. The duty imposed upon John W. Hamersley and his representatives, under §521 of the Code, which regulates the practice when a defendant, having a claim against a co-defendant, desires a determination of it, was to serve a copy of their answer upon the attorney for each of the defendants to be affected by the determination, at least twenty days before the trial. That was done in this case. We are of opinion that the referee was warranted in awarding to the defendants-respondents the same damages to rental value as were awarded to the plaintiff.

Second. It is claimed upon behalf of the appellants that the proper parties are not before the court.”

The parties to the action to whom awards have been made are trustees, and the defect claimed consists in the absence from the action as parties of the remaindermen under each of the trusts. These remaindermen are the children of Andrew S. Hamersley, (whose names appear in the above statement of facts) and James Hooker Hamersley and Virginia Field. Neither of these persons individually is a party to the action. At the time the order was made bringing in the representatives of John W. Hamersley, it must have appeared by the motion papers what the character of their interest was. Át this time the railroad companies did not ask to have brought in the remaindermen under the will of John W. Hamersley, but elected that the present co-defendants should ■ be brought in,and acquiesced in the order bringing them in without any supplemental complaint The will of John W. Hamersley, ■creating the trust under which the defendants-respondents acted, was annexed to the answer of the said defendants-respondents, and the precise interest of the said defendants-respondents in said property, as appeared by the will, was thereby disclosed. The answer of the railroad companies to this answer did not raise the question that the proper parties were not before the court, nor was it raised when the motion was made for a reference.

It appeared on the face of the complaint that Shepard Knapp was trustee only for the lifetimeoof Andrew S. Hamersley. Yet neither by answer nor by demurrer to the complaint was the point taken that the remaindermen were necessary parties. After the plaintiff had rested, the counsel for the railroad companies moved “ to dismiss the complaint, and the claims of the co-defendants, on the ground that all the parties are not before the court, and that, under the decision in the Bache case, the proceedings herein before the referee must be arrested until the plaintiffs have had an opportunity to bring in all the necessary parties, in order to give the defendants absolutely correct title to the easements for which they claim damages.” This objection was raised too late. The defendants, the railroad companies, having failed to raise the question of defective parties either by demurrer or by answer, and having raised no objection by reason thereof until after the plaintiff had closed his case, must be held to have waived such objection. Decker v. Decker, 108 N. Y., 125, 135; 13 St. Rep., 131; Code Civ. Pro., §§ 488, 498, 499.

But all the necessary parties to the adjudication herein made were before the court. No fee damage is awarded. The remaindermen are not even proper parties to, or interested in, the award for past damages. The Bache case, 60 Hun, 128; 38 St. Rep., 421, upon which the counsel for the railroad companies based the objection now under consideration, does not support the appellants’ contention. In that case,' the plaintiff’s interest terminated upon her death or marriage, but fee damage was awarded, and computed upon her expectation of life. It was error to thus place upon the defendant the burden of sustaining the hazard of the termination of plaintiff’s estate by either death or marriage. For this error the judgment was reversed. The case at bar is free from any such risk.

Third. The rulings objected to under the remaining points in the appellants’ brief, excepting the alleged error discussed under the seventh point, have been examined, and in our opinion do not demand separate and special notice. The referee did not fix, by computation, a certain sum and award the same as alternative relief, but gave the railroad companies time in which to condemn. Their proposed findings, therefore, bearing upon the question of a proper sum as alternative relief, were immaterial. For'this reason many of the exceptions to the refusals to find are not well taken. A careful examination of the numerous exceptions to findings made and refusals to find fails to disclose any material error. We reach the same conclusion in reference to the exceptions to the admission and exclusion of evidence.

Under the appellants’ seventh point, it is urged that the referee erred in awarding costs and allowance to the defendants-respondents. In all equity cases costs are discretionary, both at special and at general term. See Herrington v. Robertson, 71 N. Y., 280. Costs in equity actions, referred to a referee, are within the discretion of the referee. Phelps v. Wood, 46 How., 1. The referee, in making the award of costs herein to which objection is taken, does not appear to have abused the discretionary power with which he was vested by disregarding well settled principles applicable thereto. The defendapts-respondents had a substantial claim against the defendants-appellants, the railroad companies, who elected that they be brought in. Their rights have been litigated, and we do not think they should forfeit costs because-they do not occupy the nominal position of plaintiffs. Code, §§ 3230, 3253. It is not unusual to allow costs to one defendant against another in the same case. Budd v. Monroe, 18 Hun, 316; Chester v. Jumel, 24 St. Rep., 230. For these reasons, we think the judgment as to costs and allowance should not be disturbed.

We can find no just reason for a reversal of the judgment. It must be affirmed, with costs to plaintiff, and since the defendants-respondents have been compelled to argue additional questions to those presented by the appeal as against the plaintiff, costs must be awarded to defendants-respondents also.

Freedman, J., concurs.


text:
    Henry Schulz, App’lt, v. Charles Rohe et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed July 3, 1893.)

    1. Master and servant—NEaiuaENCE.
    In an action by an employe against his employers for damages for personal injuries caused by a defective machine, the complaint was dismissed on the ground that plaintiff was guilty of contributory negligence for the reason that he worked on the machine after he knew it was out of order. Plaintiff swore that he thought it had been fixed, having heard defendants’ foreman direct the engineer to fix it on the Sunday previous to the accident, and the engineer say he would do it, and that the machine seemed to work all right on the Monday following and up to the time of the accident. Held, that the question of plaintiff’s contributory negligence should have been left to the jury.
    3. Same.
    In such case plaintiff had a right to assume that defendants, knowing of the defective condition of said machine, would adopt all necessary precautions, and he did not neglect a duty in not ascertaining whether the repairs had, in fact, been made, and this also because he was called suddenly to operate the machine, it not being his regular work.
    Appeal from judgment dismissing complaint.

      Shaw & Fish (James M. Fish, of counsel), for app’lt; Deyo, Buer & Bauerdorf (Robert E. Beyo, of counsel), for resp’ts.
   Gildersleeve, J.

This action was brought to recover for personal injuries received by plaintiff while working in the employment of defendants on a defective machine supplied by defendants. The complaint was dismissed at the close of the plaintiff’s testimony on the ground of contributory negligence.

The machine in question was used in stuffing sausages, and was operated by steam power. It required the service of four men; two, called “fillers,” to fill the cylinders with chopped meat, and two, called “ linkers,” to assist in filling the skins and removing. The defect in the machine was hidden, and its exact nature unknown. By reason of the imperfect working of the steam valve, due to some cause which was not apparent, the machine would start suddenly, and, without warning, push the piston head into the meat cylinder, where the fillers were sometimes obliged to put their hands, and the fillers were, by reason of the defective condition of the machine, exposed to the danger of having their fingers crushed. The plaintiff’s regular employment was that of linker, a position of no danger, even while the defect in the machine existed. The plaintiff had orders, however, to take the place of a filler when one of the regular fillers was absent. It was in such an emergency, while the plaintiff was temporarily discharging the duties of a filler, that the accident occurred. While the plaintiff was filling the cylinder with meat, with his hand inside arranging the meat, as he was required to do, the machine started without warning, and the piston head caught the plaintiff’s hand in the cylinder before he could withdraw it, cutting off the fingers of the left hand, and pulling out the nerves and muscles therefrom up to the elbow. On the Thursday or Friday before the accident, which happened about five o’clock, p. M., on Tuesday, the defect was known to all, and the foreman, in the hearing of the plaintiff, told the engineer “ to fix the machine on Sunday, because he cannot fix it, the working days, it is so hot; ” and plaintiff heard the engineer say that he would repair it on the Sunday named. The plaintiff worked on the machine all the Monday following the Thursday or Friday on which the instructions to repair the machine were given, as aforesaid, and up to about five o’clock the next day, Tuesday, during which time the machine seemed to work all right. During these two days the plaintiff worked in his capacity of linker, but about five o’clock on Tuesday afternoon one of the fillers went away, and the plaintiff was ordered to take his place, and he had not filled the cylinder many times when the accident occurred.

Inasmuch as the complaint was dismissed upon the plaintiff’s case alone, all the evidence of the plaintiff and his witness must be considered as true, and the inference most favorable to plaintiff must be drawn from the testimony. Flynn v. Harlow, 46 St. Rep., 872.

The court below dismissed the complaint on the ground that the plaintiff was guilty of contributory negligence, for the reason that he worked on the machine after he knew it was out of order. But the plaintiff swears that he thought the machinery had been fixed, and the inference to be drawn from the testimony indicates that he had reason so to think, inasmuch as he had heard the foreman direct the engineer to fix it on the Sunday following the day on which the defect was discovered, and he had after-wards heard the engineer say that he would fix it on the Sunday named, and on the Monday following the said Sunday the machine seemed to work all right. Aside from the plaintiff’s uncontradicted testimony, it is a fair inference to be drawn from the testimony that plaintiff believed the machine had been mended ; and, as we have said, the inference most favorable to plaintiff must be accepted. Furthermore, the plaintiff had a right to assume that the defendants had done their duty. To be sure, it may be urged that there is no positive testimony that the machinery was not properly repaired on the Sunday; but it is hardly possible to draw an inference from the evidence that the machine was properly repaired on the Sunday and that, with no fault of the defendants, it broke again on Tuesday, so that it was a risk incident to the business which plaintiff assumed on entering into the employment. The more reasonable inference is that, if repaired, it was not properly repaired, or it would not have again got out of order on Tuesday. We cannot agree with the contention that the plaintiff neglected a duty in not ascertaining whether the repairs had, in fact, been made, either by an examination of the machine or by inquiries from those who would know, when he was required, on the afternoon of Tuesday, to assume the work of a filler. He was suddenly called to this part of the work, and was temporarily discharging the duties of a filler, in the absence of the employe who regularly did this work ; and plaintiff’s own regular employment, that of linker, involved him in no danger, although the machine was defective and worked improperly. The plaintiff had a right to expect a sound and properly working machine, and it was defendants’ duty to see that the machine was kept in a sound and proper condition. Plaintiff had a right to presume that the defendants, knowing of the defective condition of the machine, would adopt those precautions required of them ; for it is well settled that reasonable care on the part of the servant, in the performance of his work, presupposes the performance by the master of his duty to do all that reasonably lies within his power to protect the servant while so engaged. McGovern v. R. R. Co., 123 N. Y. 288; 33 St. Rep., 416. We are of opinion, therefore, that the question of plaintiff’s contributory negligence should have been left to the jury.

It cannot be claimed that the accident was the result of one of one of those dangers incident to the business which plaintiff assumed ; for those dangers which are known and can be mitigated or avoided by the exercise of reasonable care and precaution on the part of the master, are not incident to the business, and it is the duty of the master to protect his servants therefrom in all cases in which it may be done by reasonable care, and when the master directs the performance of his work by his servant, at a place which may become dangerous, and such danger may be foreseen and guarded against by the exercise of reasonable care, it is the master’s duty to exercise such precautions as will protect the servant from avoidable danger. This is the master’-s duty; and however he may choose to exercise it, whether through the supervision of a superintendent or some one of a lower grade of employment, it still continues the master’s duty, and not until he shows that it has been properly performed can he claim exemption from liability for injuries occasioned by its non-performance.. McGovern v. R. R. Co., 123 N. Y., 287-88; 33 St. Rep., 416.

It cannot be maintained that the complaint was properly dismissed for the reason that the accident was caused by the negligence of a fellow servant, i. e., the foreman or engineer; and that, therefore, the defendants are not liable. The inference to be drawn from the testimony is that the foreman was the representative of the defendants, and orders given by him were equivalent to orders issued by defendants themselves, and that defendants were chargeable with knowledge of the defective condition of the machinery, inasmuch as their foreman was not only aware of it, but issued orders to have it remedied. McGarry v. R. R. Co., 18 N. Y. Supp., 195; 45 St, Rep., 564; McGovern v. R. R. Co., 123 N. Y., 289; 33 St. Rep., 416. In fact, the plaintiff swears that everybody knew it,” i. e., the defective state of the machine.

A master owes the duty to his servant of furnishing adequate and suitable tools and implements for his use, a safe and proper place in which to prosecute his work, and, when they are needed, the employment of skillful and competent workmen to direct his labor and assist in the performance of his work. Hone of these duties can be delegated by the master to a servant of any grade, so as to exonerate the master from responsibility to another servant who has been injured by its non-performance. His neglect to adopt all reasonable means and precautions to provide for the safety of the employes constitutes an omission of duty on the part of the master, rendering him liable for an injury to an employe resulting therefrom. Panizar v. Tilly Foster Iron Co., 99 N. Y., 368. It is not until the master shows that he has properly performed this duty that he can claim exemption from liability for injuries charged to have been occasioned by its non-performance. However the master may choose to exercise this duty, whether through the supervision of a superintendent or foreman or some one of lower grade of employment, it still continues the master’s duty. McGovern v. R. R. Co., supra. The defendants cannot shift the responsibility onto the shoulders of their foreman or engineer.

We are of opinion that the learned court below erred in dismissing the complaint, and that the question of plaintiff’s contributory negligence should have been submitted to the jury.

The judgment appealed from is reversed, and a new trial granted, with costs to appellant to abide the event

Freedman, J., concurs.