text:
    Solomon Castoriano, Resp’t, v. Rene Dupe, App’lt.

      (Court of Appeals,

      Filed March 12, 1895.)

    1. Appeal—Discretion.
    An order, granting an injunction during the pendency of an action, is within the discretion of the trial court in a case where it appears, by the complaint, that the plaintiff is entitled to equitable relief.
    2. Equity—Subject-matter.
    To turn a bill of sale into a collateral security merely, and then to redeem the pledge upon' payment of the debt to be ascertained by an accounting, is clearly proper subject-matter for an equitable action.
    3. Same—Adequate remedy at law.
    The remedy by replevin is not an adequate remedy in such case, where the amount of the debt is in dispute and wholly uncertain.
    Appeal from order of the general term of the court of common pleas for the city and county of New York, which modified, and affirmed as modified, an order of special term granting an injunction upon application by plaintiff.

      A. H. Parkhurst, for app’lt; Franklin Pierce, for resp’t.
   Finch, J.

This appeal is from an order granting an injunction during the pendency of the action. We regard such an order as within the discretion of the trial court in a case where it appears by the complaint that the plaintiff is entitled to equitable relief. Hudson River Telephone Co. v. Watervliet Turnpike Co., 121 N. Y. 397 ; 31 St. Rep. 524. The complaint here alleges the execution by plaintiff of a bill of sale, absolute on its face, of certain embroideries, and its delivery to the defendant as collateral security for a debt owing to him; that the amount of that debt was by agreement to have been determined at the date of the transfer, but was left undetermined and remains so still; that the defendant claims to hold the goods as absolute owner and asserts a liability -on the part of plaintiff for sums not in truth due and owing; that an accounting is needed to ascertain the true amount of the debt which plaintiff must pay in order to redeem his property; that the embroideries are articles of a peculiar character, whose value can only be reached by private sales to a narrow range of purchasers, and which would be sacrificed by a sale at public auction; that plaintiff has tendered to the defendant the sum of eighteen hundred dollars to redeem the pledged goods, which the defendant has refused and has advertised the property for sale; and that the plaintiff is ready and willing to pay whatever sum may be adjudged to be due from him in order to redeem the pledged goods. Judgment is then demanded that the bill of sale be declared to be collateral to the debt due the defendant; that an accounting be had to settle the amount of the debt; that upon its payment the defendant be required to restore the goods, and that an injunction issué restraining a sale which would make the final relief demanded ineffectual.

There can be no doubt that a sufficient cause of action in equity is stated in the complaint. To turn the bill of sale into a collateral security merely, and then to redeem the pledge upon payment of the debt to be ascertained by an accounting is clearly proper subject-matter for an equitable action. But the appellant principally relies upon the contention that the complaint discloses on its face the fact that plaintiff has an adequate remedy at law, and so there is no ultimate right to equitable relief. The claim is that, having tendered eighteen hundred dollars and demanded a return of the goods, he may sue at law and recover the embroideries by a replevin.. That remedy would perhaps be adequate if there was no question about the amount of the debt, but is certainly not adequate where the amount is in dispute and wholly uncertain. The plaintiff was not bound to peril his whole right by an adoption of the legal remedy, but was at liberty to redeem in equity where an accounting could be had and the ascertained debt be paid.

It follows that the trial court had power to grant the temporary injunction in the exercise of its reasonable discretion, and no appeal lies to this court from the order.

The appeal should be dismissed, with costs.

All concur.

Appeal dismissed.


source: Caselaw Access Project

author: Peckham, J.

license: Public Domain

text:
    The People ex rel. Michael Brady, App’lt, v. James J. Martin et al., as Commissioners, etc., Resp’ts.

      (Court of Appeals,

      Filed March 12, 1895.)

    1. Municipal corporations—Police—Pension.
    The amendment of 1885 to § 807 of the Consolidation Act did not take away all discretion from the board of police, and, upon an application of a member of the police force who has served twenty years, such board is not, under all circumstances, bound to adopt a resolution dismissing him from the force and placing him upon the pension roll.

      2. Same.
    There is not an unlimited and unreviewable discretion vested in such board to act in an arbitrary or wholly unjustifiable manner in refusing to adopt such resolution.
    3. Same.
    It is the duty of the board to grant such resolution when the facts, upon which the right of the policeman to make it, are made reasonably clear.
    4. Same.
    When grave charges of misconduct are preferred immediately after the application for retirement is made and before it is acted upon by the board, the board has the right, before proceeding to act upon the application, to investigate such charges ; and, if it appears, upon such investigation that the charges are not simply the result of malice nor stale, but are true in fact and also of such a nature as would authorize the board, upon conviction, to dismiss the offender from the force such board is entirely justified in convicting and dismissing him, and such dismissal will furnish a conclusive reason for the denial of the application to place the officer upon the pension roll.
    Appeal from -order of the general term of the court of common pleas for the city and county of New Y ark, which affirmed an order of special term denying an application by the relator for a peremptory writ of mandamus.
    The relator herein applied to the special term of the court of common pleas for a mandamus to compel the defendants, who are the commissioners of police of the city of New York, to adopt a resolution relieving and dismissing him from the police force and placing him upon the roll of the police pension fund, according to the provisions of section 307 of chapter 410 of the Laws of 1882, and the act amendatory thereof. The application was denied, and from that order denying the application the relator appealed to the general term, which affirmed the order, and from the order affirmance he has appealed to this court
    It appears by the papers that the relator, on the 4th day of January, 1894, had been a member of the police force of the city of New York, and had done duty thereon for a period of a little more than twenty years, and on that last-mentioned day he made an application in writing to the board of police commissioners to be relieved and dismissed from the force and placed upon the roll of the police pension fund, and he stated that at the time such application was made, there were no charges of misconduct pending, nor had any been preferred against him, and he alleged in bis affidavit that the board of police commissioners had held several meetings since his application was presented to them, and they had failed and neglected to act thereon as required by law. On the 12 th of January, 1894, he gave notice to the defendants in writing, and therein demanded that they take immediate action upon his application, and that in case of their failure to pass the resolution as required by law at the next meeting of their board, he notified them that he should apply for a peremptory writ of mandamus to compel them to take such action. He further stated that on the 12th of January, 1894, and subsequent to the service of -the above-mentioned demand upon it, the police board held a meeting and neglected and refused to comply with the demand, and denied his application and refused and neglected to comply therewith up to the time of the making of his affidavit, which was January 13,1894. He also stated that since making his application to be retired there had been preferred to the defendants as the board of police certain malicious and false charges by certain persons inimical to him, which charges were set down for hearing before it on Wednesday, January 17, 1894, and he alleged that upon such charges the board ‘‘threatened to find deponent guilty and dismiss him from his said office therefor.’’ He, therefore, asked that a writ of mandamus should be granted and that all proceedings upon the part of the board in connection with the charges above mentioned should be stayed until the final determination of his application for such mandamus.
    Upon the hearing before the special term an affidavit of one of the defendants was read, in which it was admitted that the relator had made written application to the board for retirement on the 4th day of January, 1894. It was alleged, however, that on the next day, January 5th, 1894, when the application of the relator came before the board of police for action, there had been filed with the board by the superintendent of police three separate charges of serious misconduct on the part of the relator, copies of which charges were annexed to the affidavit. It was further shown that the defendant board held over any action on the application of the relator until it could investigate these charges, and that the investigation thereof was set down for hearing before the board on January 17, 1894, but that such hearing was prevented by the granting of the order to show cause by the special term staying all proceedings in relation to any charges until the decision of the application for the mandamus and the removal of the stay. It was further alleged in the affidavit that it was the intention of the board to proceed promptly with the hearing of these charges against the relator as soon as the stay should be removed, and as soon as the charges should be investigated the board would promptly proceed to consider the application made by him for his retirement
    The charges, which were annexed to the affidavit, charged that the relator on the 30th of September, 1892, asked and received from the person named in the charge a sum of $75 as part of the consideration for securing his appointment on the police force in the city of Hew York ; also that in the year 1889 the relator arrested a man, whose name was given, for a violation of the Excise Law, and in consideration of the sum of $25 received by him from the person arrested, relator allowed such person to go at large and neglected to convey him to the station house: also that the relator in the early part of the year 1890 received from a person named the sum of $75 as part consideration for securing his appointment on the police force of the city of Hew York, which relator did not pay back until compelled to do so.

      Louis J. Grant, for app’lt; David J. Dean, for resp’ts.
   Peckham, J.

By section 307 of chapter 410 of the Laws of 1882, commonly called the Consolidation Act relating to the city of Hew York, it was provided that any member of the police force who had performed duty for a period of twenty years or upwards, might “ in the discretion of the board of police, by resolution, unanimously adopted by a full board, be retired from service and placed upon the police pension roll.” This provision of course manifestly and in terms vested a discretion in the board of police in regard to the adoption of the resolution. The law stood in that condition until 1885, when, by chapter 364 of the laws of that year, the section was amended so as to provide that any member of the police force who has performed duty therein for a period of twenty years or upwards, upon his own application in writing, “shall, by resolution, adopted by a majority vote of the full board, be relieved and dismissed from such force and service and placed on the roll of the police pension fund, and awarded and granted, to be paid from said pension fund, an annual pension during his lifetime of a sum of not less than one-half the full salary or compensation of such member so retired; provided, however, that no pension granted under the provisions of this' section shall exceed the sum of one thousand dollars per annum, except,” etc., the provision following being immaterial to the case before us. The question for our determination is whether, by this amendment, all discretion was taken from the board of police, and that upon an application of a member of the police force who had served for twenty years the board was bound, under all circumstances, to adopt a resolution dismissing him from the force and placing him upon the pension roll. The relator claims that the board had no discretion except to determine the fact whether he had served the requisite length of time, and to decide upon the amount of the pension to which he might be entitled. The defendants contend that by the terms of the provision they are not bound at all events to pass the resolution, but that it is subject to a discretion in such board, to be reasonably and fairly exercised upon the merits of each application.

We think that by the amendment the members of the police board were not entirely divested of all discretion in regard to the adoption of the resolution retiring the applicant, and that the board was not bound to grant the application upon the mere fact that' he had served twenty years upon the force. The effect of the amendment was to eliminate the necessity of a unanimous vote of the full board for the adoption of the resolution retiring the applicant. We cannot see how proper effect can be given to the language which requires a majority vote of the full board for the adoption of the resolution, unless some discretion is vested in the members of the board upon the subject. The act does not assume to dictate to the members how they shall vote upon the resolution. It does require for its adoption a majority vote of all the board. One member may, therefore, vote against it Which one shall it be? No more power is given to one member than to another to vote against it, and in voting against it the member who does so uses his judgment and discretion. Judgment and discretion béing given to some member of the board, how can it be said that it is not given to all? If two members should vote-against the resolution and resort to the courts must be had for the purpose of compelling the adoption of the resolution by a majority vote, how should the order of the court be enforced ? Each member of the board might claim that he had the right under the statute to vote against the adoption of the resolution according to the dictates of his honest judgment, and bow could the court single out any one of the four members and allow him to use his judgment, while denying that right to the other three? Or, if the language of the statute were to be used in the order of the court and the board should be directed as a body to adopt the resolution by a majority vote, ought any member of that board to be proceeded against as for a contempt in using his judgment and voting against the resolution? The court has no power under this statute to direct that all the members shall vote for it; and, if not all, which three of them shall it direct? And howcanitbe said that anyone has violated the statute or the order of the court when he has but exercised his discretion and judgment and refused to vote for the adoption of the resolution ? From the very language of the section-it seems to us that some discretion is vested in the members of the board. If the legislature intended otherwise, and that the resolution should be passed at all events when the fact of the twenty years’ service was ascertained, it seems to us clear that other and different and plainer language would have been employed. The board has been invested with authority to retire the applicant by a majority vote of the full board, but as no direction has been given requiring the members to vote for the adoption of the resolution, it follows that they must be at liberty to vote in favor of or against such application.

This question was decided in the same way we now decide it in the case of People ex rel. Bolster v. French, by the general term of the first department, which case is reported in 46 Hun, 232 ; 11 St. Rep. 551, and we agree with the reasoning adopted by Judge Daniels in delivering the opinion of the court in that case. The learned judge at special term in this case took the same view and for the same reasons. The case of People ex rel. Tuck v. French, 108 N. Y. 105 ; 13 St. Rep. 89, while not determining the question, looks in the same direction. We do not mean by this construction of the act to say that there is in all cases an unlimited and unreviewable discretion vested in the members of the board of police to act in an arbitrary or wholly unjustifiable manner in refusing to adopt the resolution, being guided by their own arbitrary will and discretion. The discretion is a judicial one, to be exercised reasonably and fairly upon the application of the policeman for retirement. Generally, it would appear to be the duty of the board to grant such application when the facts upon which the right of the policeman depended to make it were made reasonably clear. But where grave charges of misconduct have been preferred- immediately after the application for retirement has been made, and before it has been acted upon by the board, we think the board has the right, before proceeding to act upon the application, to investigate such charges, and if it appear upon such investigation that the charges are not simply the result of malice, and are not stale, and are true in fact, and are also of such a nature as would authorize the board, upon conviction, to dismiss the offender from the force, then such board would be entirely justified in convicting and dismissing him, and the dismissal would furnish a conclusive reason for the denial of the application to place the officer upon the pension roll. It would be the duty of the board to act with reasonable promptness upon the charges preferred against an applicant, and it must be assumed it would also act upon them in entire good faith and with a desire to honestly discharge its official duty.

We are of the opinion that the courts below have properly construed the section in question, and the order appealed from should, therefore, be affirmed, with costs.

All concur.

Order affirmed.


author: Haight, J.

text:
    The People, Resp’t, v. The Milk Exchange, Limited, App’lt.

      (Court of Appeals,

      Filed March 12, 1895.)

    Combination—Illegal.
    A combination on the part of the milk dealers and creamery men in and about the city of New York to fix and control the price that they should pay for milk, is unlawful, and an action to annul the corporate existence of such combination is maintainable.
    Appeal from order of the general term of the supreme court in the fourth judicial department, which reversed a judgment in fa’vor of defendant entered upon an order dismissing the complaint on trial at circuit and granted a new trial.

      Alfred Ely, for app’lt; T. E. Hancock, Attorney-General, for resp’t.
   Haight, J.

This action was brought to have the defendant, a domestic corporation, dissolved, its charter vacated and its corporate existence annulled. This relief is sought upon two grounds: First, non-user; second, an unlawful and illegal combination and conspiracy made in restraint of trade to limit the supply of milk, and to fix and control the price thereof in the city of New York and elsewhere.

The defendant was organized on the 21st day of October, 1882, for the purpose, as stated in its certificate of incorporation, of “ buying and selling of milk at wholesale and retail; the purchase of dairies of milk when deemed advisable, and the sale of the same to milk dealers.” The complaint charges that the defendant was not engaged in this business. Upon the trial at the close of the evidence, it was conceded by both counsel for the plaintiff and for the defendant that the question whether the defendant had been engaged in buying or selling milk, under the evidence, was a question of law for the court and not for the jury. We-so understand the evidence. There is no conflict, and we have but to ascertain the meaning and intention of the witnesses. The plaintiff’s chief witness was Woodhull, the secretary and treasurer of the defendant. In his testimony he makes use of the expression that the exchange “has bought and sold milk ; ” but he then proceeds to state that he is familiar with the operations of the Milk Exchange in buying milk of the farmers and selling it to dealers, and then states the manner in which the business was conducted. He says: “ It is this—a farmer brings his dairy into the exchange to be sold; I go out and find him a dealer who can use the milk, and write the farmer how to mark his milk; I make the collection of the dealer and pay it to the farmer, and we guarantee him the collection.” He further testified that their commission was three per cent.; that the milk was never shipped to the exchange, but was shipped directly to the dealer; that they sold the milk for the farmer at the exchange price, which they guaranteed to collect and turn over to the farmer, less their commissions. Humero us witnesses speak of their arrangement made, or attempted to be made, with the exchange for the sale of milk, and in each case it was distinctly stated that' the exchange did not buy milk ; that they merely looked up a dealer who would purchase it at the exchange price, and that they guaranteed the collection for three per cent, commission.

We think, therefore, that there can be no question as to the meaning of the witness Woodhull as to the expression made use of by him above referred to, for he immediately proceeded to explain how the milk was purchased and sold, and this evidence establishes the fact that the milk was not purchased by the exchange, but that it was sold in the manner described for the commission stated. The transactions, therefore, constituted a commission business, and were not, strictly speaking, the “ buying and selling of milk at wholesale and retail.” Whether the engaging in a commission business, such as we have described, is authorized by the defendant’s charter, we do not deem it necessary now to determine. It may be that the commission business is so closely allied to that of buying and selling as to make the former legitimate and permissible under the defendant’s certificate of incorporation.

We are thus brought to a consideration of the charge of unlawful conspiracy in restraint of trade. We have only called attention to the charge of non-user for the purpose of showing the precise nature of the business conducted by the defendant, as bearing upon the latter question. If the defendant was the purchaser of milk, or of dairies of milk, it had the right to - fix the price from time to time that it would pay therefor. If, however, it was engaged only in the selling of milk upon commission, then its duty as a commission merchant, as ordinarily understood, was to get as high a price for the seller as could be reasonably obtained, and it was no part of its duty to otherwise fix the price of milk.

It appears that the Milk Exchange when organized, or shortly thereafter, had ninety odd stockholders, a large majority of whom were milk dealers in the city of Hew York or creamery or milk commission men doing business in that vicinity; that at the first meeting of the exchange after its incorporation, the following, among other by-laws, was adopted: “The board of directors shall have the power to make and fix the standard or market price at which milk shall be purchased by the stockholders of this company and to declare the stock of any and every stockholder herein who purchases milk at any other than the price so named by the board, forfeited, subject to the conditions set forth in article 3, sections 4 and 5, of these by-laws. All stock so forfeited by said board of directors shall be subject to the order of the board of directors and shall be disposed of as they direct.” This by-law remained in force for a number of years and until after there was an investigation as to the character and nature of the defendant’s business and a report tirade by a committee of the senate. The by-law was then amended by striking out that part thereof which authorized the forfeiture of the stock of a stockholder who purchased milk at another price than that fixed by the exchangé. It was again amended in April, 1890, but that part thereof which provided that the board of directors shall have the power to determine and fix from time to time the exchange price of milk was retained. Acting upon these by-laws the defendant’s board of directors have from time to time during its corporate existence fixed the price of milk to be paid by dealers, and the prices so fixed have largely controlled the market in and about the city of New York and of the milk-producing territory contiguous thereto.

These facts are significant, and we are unable to escape the conviction that there was a combination on the part of the milk dealers and creamery 'men in and about the city of New York to fix and control the price that they should pay for milk. Was this lawful ?

In Judd v. Harrington, 139 N. Y. 105 ; 54 St. Rep. 471, certain-parties, who were dealers in sheep and lambs, entered into an agreément, by its terms organizing an association for the declared purpose of guarding and protecting their business interests from loss by unreasonable competition. The agreement was to pool their commissions, except such as should be agreed to be paid to a butchers’ association with which they had agreed only to sell to the butchers and the butchers to buy only of the dealers belonging to their respective associations. It was held that the real nature and purpose of the agreement was to suppress competition in an article of food, and to so control the market that they could enhance the price of the article.

In People v. Sheldon et al. 139 N. Y. 251; 54 St. Rep. 513, certain coal dealers organized á company known as the “Lock-port Goal Exchange.” The object of the organization was to prevent competition in the price of coal among the retail dealers in that city by constituting the exchange the sole authority to fix the price which should be charged by the members for coal sold by them. Sheldon and others, members of the exchange, were indicted, charged with the offense of doing an act injurious to trade or commerce, The trial judge submitted the case to the jury upon the theory that if the defendants entered into the organization for the purpose of controlling the price of coal and managing the business of the sale thereof, so as to prevent competition in the price between the members of the exchange, the agreement was illegal. The jury found the defendants guilty. It was held that the principle upon which the casa was submitted to the jury was sanctioned by the authorities. Andeews, Ch. J., in delivering the opinion of the court said: “The question is, was the agreement, in view of what might have been done under it, and the fact that it was an agreement the effect of which was to prevent competition among the coal dealers, one upon which the law fixes the brand of condemnation ? It was hitherto been an accepted maxim in political economy that ‘competition is the life of trade.’ The courts have acted upon and adopied this maxim in passing upon the validity of agreements, the design of which was to prevent competition in trade, and have held such agreements to be; invalid.” Again he says: “Agreements to prevent competition in trade are, in contemplation of law, injurious to trade, because they are liable to be injuriously used. The present case may be used as an illustration. The price of coal now fixed by the exchange may be reasonable in view of the interests, both of dealers and consumers, but the organization may not always be guided by the principle of absolute justice. * * * If agreements and combinations to prevent competition in prices are or may be hurtful to trade, the only sure remedy is to prohibit all agreements of that character. If the validity of such an agreement was made to depend upon actual proof of public prejudice or injury, it would be very difficult in any case to establish the invalidity, although the moral evidence might be very convincing.”

In Arnot v. Pittston & Elmira Coal Co., 68 N. Y. 558, the Butler Colliery Company and the Pittsou & Elmira Coal Company "were corporations engaged in mining and selling coal. For the purpose of monopolizing the trade and maintaining a high price for coal, the two companies entered into a contract by which one agreed to take all of the coal which the other should desire to send north of the state line at the regular market price, and agreed not to sell coal to any other party to be shipped in the direction. It was held that the agreement was entered into for the purpose of enhancinthe price of coal north of the state line, and that it was against, public policy and void. Batallo, J., in the opinion, says: “That-a combination to effect such a purpose is inimical to the interests of the public, and that all contracts designed to effect such an end are contrary to public policy, and, therefore, illegal, is too well settled by adjudicated cases to be questioned at this day.” See People v. Fisher, 14 Wend. 9 ; Hooker and Woodward v. Vanderwaler, 14 Denio, 349; Stanton v. Alien, 5 id. 434; Sarrtoga County Bank v. King, 44 N. Y. 87; Leonard v. Poole, 114 id. 371; 23 St. Rep. 753.

Applying the rule thus established to the evidence under consideration, it appears to us that a case is presented in which the jury might have found that the combination alluded to was inimical to trade and commerce, and, therefore, unlawful.

It may be claimed that the purpose of the combination was tb reduce the price of milk, and that it being an article of food such reduction not But the was fixed for the benefit of the dealers, and not the consumers, and the logical effect upon the trade of so fixing the price by the combination was to paralyze the production and limit the supply, and thus leave the dealers in a position to control the market, and at their option to enhance the price to be paid by the consumers. This brings the case within the condemnation of the authorities to which we have referred.

It is asserted that this litigation was instituted upon, the petition of members of the “Milk Producers’ Union,” and that, the purpose of that association was to enhance the price of milk. This may be, but the action was brought by the attorney-general, and the influences that operated upon him to induce his prosecution of the defendant are now unimportant. The questions for our determination are presented by the pleadings, and the parties have the right to have them determined upon the merits. If the “Milk Producers’ Union” is engaged in an unlawful business, which is a restraint upon trade and commerce, it may be dealt with in another action.

The order appealed from should be affirmed and judgment absolute ordered in favor of the plaintiff upon the stipulation, with costs.

All concur (Andrews, Ch. J., and Bartlett, J., on the ground of non-user), except Peckham, J., who dissents upon the ground that there was proof sufficient of user, and that the action of the defendant did not fairly tend to enhance the price of milk to the consumer.

Order affirmed and judgment accordingly.


author: Andrews, Ch. J.

text:
    Elizur G. Webster et al., Resp’ts, v. Kings County Trust Company, App’lt.

      (Court of Appeals,

      Filed March 12, 1895.)

    1. Vendos and subchaser—Tender.
    In general, a contract to convey land free from incumbrance will not be satisfied by a tender of a conveyance subject-to unsatisfied and unpaid mortgages, though the purchaser is permitted to deduct an equivalent from the purchase money.
    2. Same.
    But the purchaser may dispense with this duty resting on the vendor and, by his conduct, put himself in a position where an allowance will be all that he can equitably demand.
    3. Deed—Delivery—Escrow.
    A deed, tendered on trial and placed under the control of the court in the hands of the clerk, duly executed and acknowledged, is a good delivery in escrow, which will not be defeated by the subsequent death of the grantor.
    Appeal from judgment of the general term of the- supreme court in the second judicial department, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon a -decision of the court on trial at special term.

      George Y. Brower, for app’lt; John L. Hill, for resp’ts.

      Affirming 62 St. Rep. 112.

   Andrews, Ch. J.

(1) The main objection to the title, and the only one originally made, was that the vendors whose title was acquired under the sale at public auction, December 17, 1884, were disabled from purchasing by reason of the fact that they were at the time trustees of the Long Island Savings Bank. The order made in the people’s action, November 13, 1877, brought to sequestrate the property of the savings bank and for the appointment of a receiver, was made after hearing all the parties interested, including the depositors of the bank. That order denied the application for the appointment of a receiver, and permitted the trustees of the bank to remain in control and management of the property of the corporation for the purpose of selling and converting the assets and paying the depositors according to the terms of the order and the proposition of the trustees, to which depositors representing ninety-four per cent, of the deposits had consented. The order left the action for sequestration pending and operated to suspend'for the time being the taking possession and the administration of the assets by the court. From time to time orders were granted by the court upon the application of the bank and its trustees ex parte, without notice to the attorney-general or the depositors, extending the time for completing the liquidation. But on the 11th day of October, 1884, the court on the application of the savings bank and the trustees directed that the real estate of the bank should be sold at public auction on giving public notice according to the law and practice of the court respecting judicial sales, on or before December 15, 1884 (subsequently changed to December 17, 1884), and the order declared that 41 either or any of the parties to the action, or either or any of the trustees of said defendants, the Long Island Savings Bank of Brooklyn, may become a purchaser at such sale.” On the sale Webster, Stryker and Agar became the purchasers of the lot on which the bank building was located and received the usual deed and went into possession thereunder, taking the rents and profits, and on the 19th of January, 1893, entered into a contract with the defendant, the Kings County Trust Company, for the sale of the property so purchased by them to that company, the specific performance of which is the subject of this action. No order for the confirmation of the sale of December 17, 1884, was made until May 2, 1893. Upon that day application for confirmation was made by the purchasers to Judge Landón at special term (before whom all the prior, proceedings had been taken) on notice to the savings bank and the attorney-general, and the court made an order confirming the sale, reserving the right of any depositor of the bank whose dividends had not been paid pursuant to the terms of settlement, to enforce the liability of the purchasers on their bond filed November 14, 1877. Thereafter on the 17th day of November, 1893, one Hanna, a depositor in the savings bank who had received but eighty per cent, of his claim, applied to the special term in his own behalf and in behalf of all other depositors, for leave to intervene in the people’s action and to have the sale of December 17, 1884, and the subsequent proceedings set aside on the ground that the order of October 11, 1884, directing the sale and permitting the trustees to purchase was invalid. The petition set forth the history of the prior litigation and proceedings and that the several orders were made without notice ; that the sale was for an inadequate price ; that the trustees were incapacitated from purchasing for themselves, and it alleged circumstances which the petitioner claimed excused loches in making the application. The petition with the affidavit and the order to show' cause were served on the attorney-general, the attorney who appeared for the savings bank in the action, and on its vice-president. On the matter coming on to be heard before Judge Landon, May 20, 1893, he heard the application on the merits, “as fully to all intents and purposes, as though the order of confirmation of May 2, 1893, had not been made,” and he found that the applicant was not chargeable with loches in making his application, and having considered the matters as though presented de nova, he decided that the proceedings and sale were valid and binding upon all the-parties interested, including the depositors. He made an order denying the application, except that it permitted the petitioner to intervene in the action in behalf of himself and of all other depositors and to appeal from the order of confirmation “ with the same force and effect as if he had been allowed to intervene and had actually intervened and appeared and opposed said motion on the merits.” From this order of May 20, 1893, Hanna appealed tq this court. On the argument the question of the validity of the-sale and the right of the trustees to purchase were fully presented, and this court affirmed the order of Judge Landon, 138 N. Y. 658. The question as to the validity of the sale is concluded by the decision on the appeal from the order. The court in affirming the order below necessarily adjudged that the clause in the order of October 11, 1884, permitting the trustees to purchase, was-valid, and that the sale was in all respects legal and binding. All the parties interested in the question were before the court in that proceeding, the people, the savings bank, the depositors and the purchasers. The Kings County Savings Bank was not a party nor was it necessary that it should have been made a party. The decision bound the title upon the points involved as to all the world. The main objection of the defendant to completing the purchase is, therefore, unfounded.

(2) By the contract the premises were to be conveyed “free from all incumbrance.” At the time of the contract there were unsatisfied mortgages on the premises amounting to about $80,-000, which were then due and which still remain liens on the land. The deed of the vendees tendered on the trial contained full covenants on the part of the vendors, making no mention of the mortgages. The judgment permits the defendant to deduct from the purchase money the amount of the mortgages and to .accept the conveyance, and enjoins the defendant from asserting that the existence of the mortgages constitutes a breach of the covenants in the deed. .We entertain no doubt that in general a contract to convey land free from incumbrance would not be satisfied by a tender of. a conveyance subject to unsatisfied and unpaid mortgages, although the purchaser was permitted to deduct an equivalent from the purchase money. The vendor under such a contract cannot impose upon the purchaser the -burden of paying the mortgages and procuring their satisfaction, even though the mortgages are presently due and payable. But the purchaser may dispense with this duty resting on the vendor, and by his conduct put himself in a position where an allowance' out of the purchase money will be all that he can equitably demand. The evidence in this case justifies the conclusion that the mortgages were kept afoot at the instance of the defendant and that the defendant waived a literal performance of the contract in respect to the incumbrances.

(3) It is objected that the building encroaches upon the street line. There is evidence in the case tending to show that the granite foundation of the water table extends five inches outside of the building line, and that the door posts extend over the building line on Fulton street one foot and three inches. It does not appear whether the city consented to this construction. The building has deen erected more than twenty years, and, so far as appears, neither the municipality nor any of its officers has ever objected to the alleged encroachment. It was shown that the almost uniform usage in Brooklyn in the construction of buildings of like character is to project the water table and the entrance a little beyond the building line. The building in question was located in the vicinity of the most valuable business property in the city. The main building is concededly on the street line. It is quite probable that the building line in this vicinity is distinctly marked by the general situation and the uniformity of location of the main walls of the buildings, and that a purchaser, by observation, without any formal survey, would be able to discover any projection beyond that line. The question may arise whether, under such circumstances, a purchaser, under a contract which describes the premises by- metes and bounds, which accurately defines his property, can be excused from performance because of a slight projection of the water table or stoop front of the building beyond the street line, where such projection is visible upon inspection. We need not consider that question now, because we are of the opinion that this very technical objection is answered by the general finding that the purchaser, after the contract, waived all objections to the title, except the main objection first considered, and there is the further technical answer that, in the absence of any statement in the record that it contains all the evidence, we must presume in support of the judgment and findings that there was evidence sufficient to sustain the judgment.

(4) The objection that the closing of the contract was extended only to March 10, 1893, and that the vendors could not give a good title at that time, and that the defendant then formally rejected the title tendered and thereby the contract came to an end, is not well taken. The dealings between the parties after that • date clearly show that the declination of the title at that time by the defendant was tentative merely and that both parties proceeded upon the understanding that if the question of the right of the trustees of the savings bank to purchase should be judicially and affirmatively settled in the contemplated proceedings, the sale would be consummated.

(5) The death of Agar after the trial did not abate the suit, nor was it necessary that a new conveyance of his interest in the property from his heirs should be procured. The deed tendered on the trial and placed under the control of the court in the hands of the clerk, duly executed and acknowledged by Agar and the other plaintiffs, was a good delivery in escrow, which was not defeated by his subsequent death. Buggles v. Lawson, 13 Jo. 285; Hunter v. Hunter, 17 Barb. 25. The surviving plaintiffs could continue the action in their own names to recover the unpaid purchase money, and on recovery they would hold the share of Agar in trust, for his representatives.

We think the judgment is right and it should be affirmed, with costs.

All concur.

Judgment affirmed.


author: Finch, J.

text:
    Clara J. Bogart, as Administratrix, etc., Resp’t, v. The Delaware, Lackawanna and Western Railroad Company, App’lt.

      (Court of Appeals,

      Filed March 12, 1895.)

    1. Negligence—Bridge.
    Where a bridge was constructed by a predecessor company, the successor’s liability rests, not upon defects in the original construction, but upon an omission to discover and remedy such defects as the result of a proper system of inspection.
    2. Same.
    The proposition that a railroad company can ascertain that one abutment of a bridge, which it did not itself construct, is built of imperfect and unsuitable material, with poor mortar and on a bad foundation, and may prudently assume that the other abutment is free from defects, was built differently and more safely because no weakness is visible, and take the chances of results, cannot be charged as matter of law.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed orders denying motions for a new trial.

      John G. Milburn, for app’lt; E. F. Babcock, for resp’t.

       Affirming 55 St. Rep. 291.

   Finch, J.

The most important contention argued on behalf of the appellant arises over the refusal of the trial judge to charge as requested that the defendant should have the verdict if the jury were satisfied that the cause of the accident was the extraordinary, flood in some manner destroying the south abutment of the bridge. The train went into the water and the plaintiff’s intestate was killed. Since the bridge was constructed by a predecessor company it was conceded that the defendant’s liability must rest not upon defects in the original construction, but upon an omission to discover and remedy these defects as the result of a proper system of inspection. It was proved, and the court distinctly charged, that nothing in the appearance of the south abutment indicated defect or danger, or gave any observable warning of the structural weakness in fact existing in that abutment. That weakness was shown to be, by the testimony given for the plaintiff, a foundation upon quicksand, an improper backing of cobble and field stones, and the use of mortar made of poor sand and containing very little cement. These defects, of course, were not obvious to the eye or capable of detection by ordinary observation. The charge of the court in that respecttmet with the appellant's approval. But it is claimed that at a later stage of the charge the trial judge became inconsistent and submitted to the jury the question of negligence as to both abutments, and the language referred to was this : “ So it will be for you to say whether the plaintiff has established here by all the evidence in the case that these abutments were improperly constructed, and if they were improperly constructed, then whether or not the defendant, after it took possession of this road was guilty of negligence in failing to find out that they were improperly constructed and to see that they were properly constructed.” To this portion of the charge there was no exception. It was not inconsistent with or contradictory of what had previously been said as to the south abutment by itself, but left that unchanged and submitted the general question in subordination to the specific charge. But the appellant claims that there was an inconsistency and danger of some misunderstanding. If the learned counsel for the defendant thought that, they should have called the court’s attention to its use of the word “ abutments” in the plural and asked for a correction, or at least entered an exception. They did neither. All that occurred was this: At the close of

the charge “ the defendant’s counsel excepted to the charge where the j ury are allowed to find or predicate any finding of negligence on the provisions made at this bridge for carrying the water through or allowing the water to pass.” The evident meaning of this exception was that there was no proof of any insufficiency of the waterway. The court did not say that there was or assume that there was. The judge’s charge touched that subject but incidentally in stating the general rule of the bridge builder’s duty as affected by the character of the stream. One of the defenses asserted was that.the flood which destroyed the bridge was so extraordinary and exceptional that no one was negligent for not anticipating and providing against it. That claim required the court to state the general rule that the builder was bound to anticipate such extraordinary and unusual floods as the character and history of the stream showed might at some time be reasonably expected, and it was in that connection that a sufficient opening was referred to as necessary to be provided.

Following this exception there was a request to charge, which, in the record, reads thus: “ If, under the evidence, the jury shall find that the cause of this accident was this extraordinary flow of water, in some way causing the destruction of the south abutment, that the plaintiff is not entitled to recover.” Obviously, the trial court must have understood this request to mean that the flood was so great as to excuse the defendant, no matter from what cause the bridge fell. I should never have suspected any other meaning but for that asserted to have been its purpose on the argument. It is now said that its meaning was to ask a charge that, if the cause of the accident was the fall of the south abutment, then the defendant was not liable. The request was “ if the cause ■of the accident was this extraordinary body of water,” and it now becomes, if the cause was the fall of the south abutment. I doubt very much whether we ought to give it the construction claimed for it, but without resting our decision upon that point I am satisfied that the refusal to charge was not error, even upon the appellant’s construction, because it was impossible to say, as matter of law, that there was no negligence in the- failure to discover the structural defects of the south abutment. The bridge was a single construction, both abutments of which were built at one time, by one contractor, under one superintendence, and with the same material. No inspector of the defendant could or did fail to understand that natural and presumable fact. The north abutment developed defects of such a character as to compel it to be partially taken down for the purpose of repair. Necessarily the workmen of the defendant discovered and knew all about the defects of that construction. They knew that poor mortar was used, crumbling at the touch, and without tenacity or strength. They discovered the backing of cobbles and of stone from the fields and the character of the ground upon which the structure stood. The defendant thus had notice that the north abutment was shabbily and unsafely constructed, and the court was asked to charge, as a matter of law, that with that knowledge they were at liberty to assume that the south abutment, built at the same time and by the same men, was built in a different way and free from the defects discovered. The court could not say that. The inference, one way or the other, was an inference of fact and not of law. That a railroad company, which is responsible for the lives and safety of its passengers,'can ascertain that one abutment of a bridge, which it did not itself construct, is built of imperfect and unsuitable material, with poor mortar and on a bad foundation, and yet may prudently assume that the other abutment is free from these defects, was built differently and more safely because no weakness is visible, and take the chances of results, is a proposition not to be charged as matter of law, and- which the common sense of the average man would be likely to reject as an inference of fact. The ascertained defect of the north abutment would lead a prudent inspector to doubt the safety of the other and impel him, at least, to make some effort to ascertain the truth' beyond merely looking at the structure from the outside. It was thus a question for the jury whether the duty of the company was fully performed, and whether it was negligent to trust to appearances in the south abutment, which it knew had proved deceitful for a time in its fellow across the stream.

Other questions argued may be left upon the opinion rendered at the general term.

The judgment should be affirmed, with costs.

All concur, except Haight, J., not sitting.

Judgment affirmed.


text:
    Hannah Kennedy, as Administratrix, etc., Resp’t, v. Manhattan Railway Company, App’lt.

      (Court of Appeals,

      Filed March 12, 1895.)

    Master and servant—Safe place.
    When a car cleaner knows that the yard is in an unfinished state, uncovered in places and in course of being covered, he assumes, by continuing in the employment, the risk of falling through the uncovered places.
    Appeal from judgment of the general term of .the supreme court in the first judicial department, entered upon an order which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a hew trial.

      Joseph H. Adams, for app’lt; David Leventritt, for resp’t.

       Reversing 56 St. Rep. 883.

   Peckham, J.

The plaintiff’s intestate, Michael Kennedy, was one of the cleaners of defendant’s cars at the northern terminus of its road. On the 24th of January, 1887, he fell from defendant’s yard, located between 144th and 145th streets and Seventh and Eighth avenues in the city of Hew York, and received injuries from which he died. The plaintiff claims that the accident was occasioned solely by the defendant’s negligence in failing to provide and maintain for the deceased when in its service a safe and suitable structure upon which to prosecute his work. The yard spoken of was' on a level with the main road of the defendant and was elevated quite a number of feet above the grade of the street below. Trains were switched off from the main road to this yard to be cleaned, repaired and otherwise provided for. Kennedy’s duties as a car cleaner required him to work upon this elevated yard as well as upon the main line, and he had been in the employment of the defendant for about two years. This yard embraced seven tracks,, running parallel with each other from Seventh avenue and connected with the main road on Eighth avenue. Between these tracks and parallel with them provision was made for plank roads or walks which would furnish defendant’s servants with means for walking about the structure, and upon which the men at work would pass from car to car in the prosecution of their labors. The plank had not all bfeen laid at * the time of the accident. Upon the day in question Kennedy went to work at about seven o’clock p.m. There were seven trains with five cars to each train stationed in the new yard when he arrived there, and it was his duty, in connection with fellow-laborers, to go upon the yard that night for the purpose of cleaning these cars. There were five car cleaners at work that night, three of whom, among them the deceased, were at work on a train on the third track. They finished cleaning the first train about nine o’clock, and were getting out of it in the course of proceeding to the next train when the accident occurred. Kennedy and his companion White stepped out on the platform of the car nearest to the train which they intended to go to, and which was close to them on the Seventh avenue side, and Kennedy going first on the platform of the car caught hold of the handle on the platform and put his foot on the step, with his back towards the outside, and when he stepped back he dropped down through an opening in the plank below. This hole was uncovered, unguarded and unlighted. It extended six or eight feet long and three or four feet wide, and commenced right outside of the platform of the car, so that where the platform of the car ended the hole below it began, and it was impossible for any one stepping down from the car step to find a footing, except by stepping underneath the car platform. This new yard, so-called, was an uncompleted structure. The defendant had. been using it for three or four weeks, and when they commenced to use it it was in a very incomplete state, so far as the covering between the tracks was concerned. During that period and down to the time of the happening of the accident the defendant had its carpenters constantly employed in bringing the yard towards a completed state in the way of covering over the spaces between the tracks with planks, properly laid down and fastened. The work had not been completed, but was in the course of completion when the defendant commenced to use the yard, and during the three or four weeks which had elapsed from the time when they commenced'to use it this work had been going on, and the spaces between the tracks had not yet been entirely covered. Kennedy had been working at the place during the whole of this time, and was necessarily familiar with the fact that the yard was not yet properly or completely covered with all the planks which it was the obvious intention of the defendant to place there. This clearly and unquestionably appears from the evidence of plaintiff’s own witnesses.

The hole through which Kennedy fell was not a hole in a completed structure, carelessly left uncovered. Two gangs of carpenters had commenced to plank at the different ends of the yard, and were gradually working towards each other, and the space in question was the distance between them at this place as they left off work that night. As the witness White says, there were in other portions of the yard holes, meaning simply the fact that the carpenters had not yet completed the work which they were employed to do, and, lienee, various places were still left uncovered at the time of the happening of this accident. The witness Cochran said that he knew that this was a new. yard, and that they had been building it for some time; he knew that it was not completed at that time. In explaining the question of the covering of the structure one of the witnesses for the defendant said: “During all this time, from the time they began to work on the new structure there at the new yard to the time when Kennedy fell through, the carpenters had been at work covering the structure, advancing more day by day in covering it up entirely, working from both ends.” And, “Kennedy had been working there for some time previous to the accident; he was watchman, for the week previous to that.” This was simply corroborative of the plaintiff’s evidence.

There was some evidence of a warning having been given to car "cleaners on several nights before this occurrence to be careful on account of the condition of the yard,, but I do not think that it was proved to have been given deceased with sufficient clearness to admit of the statement that it was shown beyond dispute. Actual knowledge of the facts by deceased cannot be doubted. It appears from the evidence beyond any contradiction or dispute that the structure was new and uncompleted, and, in that respect, dangerous for those who, did not exercise particular care in regard to walking about the yard. The learned judge who tried the case at circuit apprehended with perfect clearness the law applicable to this case. He charged the jury that the defendant had the right to use this structure in the condition it was before the planking was completed, and that it had the right to say “We propose to use these tracks now, although we have not completed them,” and if an employee then goes upon’ the structure to work with his eyes open and in possession of all his faculties and understands the situation, the law says that he does it at his own risk and cannot recover. And upon the request of the defendant’s counsel the court also stated that if the deceased knew that the yard was in an unfinished state and that it was uncovered in places, and that it was in the course of being covered, he assumed by continuing in the employment the risk of falling through these uncovered places. We think this is a perfectly correct statement of the law applicable to .a case of this kind. The defendant had the right to use that structure before it was completely planked over. It could ask its employees to continue their work of cleaning its cars at that yard before the planking was completed, and if with full knowledge of that fact the employees should consent to do the work at that place they would assume the risk consequent thereon. But the learned judge left it to the jury to' decide the .question whether the deceased was notified of the condition of the yard or whether he had acquired knowledge thereof so that he perfectly understood its condition before going to work. We have carefully read over all the testimony in the case, and we have come to the conclusion that the evidence showed beyond any doubt that the deceased was fully aware of the general condition of this yard at the time when he went on duty on the night in question. He had been there daily for more than three weeks, and had been watchman at times, and at times a car cleaner. He was necessarily familiar with the locality, with the fact that the yard was not completed, with the fact that the carpenters were at work daily and with the fact that the planking did not entirely cover the yard. Knowing these facts, he must be held to have assumed the risks which accompanied such situation, and that he did know these facts we think there is no_possible room for doubt. It was not a question to be submitted to the jury. Under these circumstances, when he went out from the car and turned his face towards the inside of the car platform and stepped off from the car backwards without looking where he was to laud, we can only see a most sad and unfortunate accident for which the defendant, within acknowledged principles of law, cannot be held liable.

We think the judgment should, therefore, be reversed and a new trial granted, with costs to abide the event.

All concur, except Andrews, Oh. J., and O’Brien, J., dissenting.

Judgment reversed.


text:
    Nellie Sisco, as Administratrix, etc., Resp’t, v. The Lehigh and Hudson River Railway Company, App’lt.

      (Court of Appeals,

      Filed March 12, 1895.)

    1. Master and servant—Appliances.
    The master does not undertake with the servant that he will use the very best appliances, nor is he called upon to discard machinery, adopted by him in his business, reasonably suited therefor, though there may be other machinery which is safer.
    2. Same.
    Still less is he to be cast in damages for error of judgment in selecting one method of prosecuting his business, or one kind of machinery or appliance, on pr.oof that another method or appliance is better or safer, when both methods or kinds of appliances are in common use.
    3. Same—Risk.
    The servant takes the risk of all constructions necessary and reasonably adapted to the business of the master.
    4. Same—Burden.
    The burden is upon him to show that the appliance, concededly useful in the business, was improperly constructed or located. Proof that it is dangerous is not sufficient.
    Appeal from judgment of the general term of the supreme court in the second judicial department entered upon an order, which affirmed a judgment in favor of .plaintiff and also affirmed an order denying a motion for.a new trial.

      Isaac H. Maynard, for app’lt; John W. Lyon, for resp’t.

      Reversing 59 St. Rep. 162.

   Andrews, Ch. J.

The original plaintiff, Eugene Sisco, on the 18th day of April, 1890, in the performance of his duty as brakeman on a moving freight train of the defendant near Monroe station, was climbing up a ladder on the outside of a box car to set a brake, and while on the ladder his head came into collision with the stationary arm of a mail crane, which had been erected by the defendant at that point March 31, 1890, pursuant to the directions of the United States mail authorities. He was seriously injured and brought this action in his lifetime against the defendant to recover damages for the injury, and in his complaint, among other-things, he specified as a ground of liability the want of proper care on the part of the defendant in maintaining the obstruction by which he was inj ured in “ such close proximity to its said railroad.” The defendant put the allegations of the complaint in issue, and the case was tried before the jury, who award-ed $8,000 damages. The general term affirmed the judgment entered on the verdict, and'from the judgment of affirmance this appeal is taken. The original plaintiff has. died since the appeal, and his administratrix has been substituted as plaintiff in the action. The trial judge, upon the issue of the defendant’s negligence, submitted to the jury two questions : First, whether it was negligent in placing the mail crane too near the side track of the railroad, or, second, in failing to give reasonable warning to its employees of its presence, so that they .might guard against the danger, and instructed them in substance that if they fou nd against the defendant on either of these questions the plaintiff, in the absence of contributory negligence, would be entitled to a verdict. It is urged on the part of the appellant that the court erred in submitting to the jury the question whether the defendant was negligent in putting the mail crane so close to the railroad. If this point is well taken it will be unnecessary to consider the question whether negligence could be imputed to the defendant by reason of its failure to notify its employee of the erection of the crane, it having been erected only a short time before the injury in question. The jury found a general verdict, and as it may have proceeded exclusively upon the ground of a negligent location of the crane, if that question ought not to have gone to the jury, the exception to its submission requires a reversal of the judgment.

The mail crane is an appliance to facilitate the taking into a mail car of mail bags when the car is in motion. The defendant erected two on the line of its railroad in 1886, which have been in use since that time, identical in construction, and in relative location to the track, as the one in question. The structure consists of an upright post eleven feet in height above the ground, and standing seven feet six inches from the nearest rail, with a movable arm in the middle and a stationary arm at the top, three feet six inches long, extending towards the track. When a car is passing there is a space of about twelve inches between the end of the arms and the side of the car. The method of operation is to suspend the mail bag between the upper and lower arms. In the mail car is a lever or arm having a sweep (as near as can be collected from the diagram) of a little more than three feet, which the mail1 agent puts out when approaching a mail crane, and it strikes the mail pouch suspended on the crane and draws it into the car. This device may be operated when a train is moving at great speed. Evidence was given on the part of the plaintiff that on the Erie, New York Central and some other roads mail cranes were used, constructed with a movable arm at the top, which, when not kept extended by the weight of the mail bag, rose or fell autihomatic ally. On the part of the defendant it was shown that mal cranes-like those used by the defendant were in use on the Union Pacific and other extensive lines of railroad, and the master mechanic of the defendant testified, without contradiction, there being no othes evidence on the point, that mail cranes with the stationary armr were preferable to. those with the movable arms, on the ground that the former permitted a greater space between the end of the arm and the side of the car than those of the other construction. There was no evidence that the crane in question was placed nearer the track than cranes upon other roads, nor that it was practicable to place a crane at a greater distance than was the one in question or to construct it with a shorter arm and have it answer the purpose in view. There was affirmative evidence as to the location of cranes on other roads, and in all the cases referred to it was shown that they were located no further from the track than the cranes erected by the defendant, and that the space between the end of the arm and the side of the passing car was no greater. It was shown that in constructing the cranes the defendant adopted plans recommended by the 11 Railroad Gazette,” diagrams of which were introduced in evidence.

Upon the state of the proof we think there was no evidence authorizing the submission to the jury of the question of negligence of the defendant in the location of the cranes. The court eliminated the point whether the defendant should have adopted the crane with the movable arms, and very properly. The employer does not undertake with the employee that he will use the very best appliances, nor is he called upon to discard machinery adopted by him in his business reasonably suited therefor, although there may be other machinery that may be safer. It is bound to the exercise of reasonable care in providing machinery and appliances, in view of all the circumstances. Still less is the master to be cast in damages for error of judgment in selecting one method of prosecuting his business, or one kind of machinery or appliance, on proof that another method or appliance is better or safer when both method or both kinds of appliances are in common use. Frace v. N. Y., L. E. & W. R. R. Co., 143 N. Y. 182 ; 62 St. Rep. 166 ; Flinn v. N. Y. C. & H. R. R. R. Co., 142 N. Y. 11; 58 St. Rep. 431. It was not found, nor was there any evidence upon which a jury could infer, that the crane in question could be placed any further from the track than it was and perform the function for which it was designed. The plaintiff was bound to show a state of facts indicating negligent construction or location, to raise a question for the jury upon this point. It was not sufficient for him to show an injury, or that operating the device involved danger to the brakemen. He took the risk of all constructions necessary and reasonably adapted to the business of the railroad. The burden was upon him to show that the appliance, concededly useful in the business of the defehdant, was improperly constructed or located, and this he wholly failed to do: Proof that it was dangerous was not enough. He was bound to go further and show that the defendant might, by the use of reasonable care, have accomplished its purpose and at the same time protected its employees from the danger.

We think the judgment cannot be sustained without establishing a principle which will subject an employer to liability to his employes from the mere happening of an injury while engaged in a dangerous service.

The judgment should be reversed and a new trial ordered.

All concur.

Judgment reversed.


text:
    James Walsh, an Infant, etc., Resp’t, v. The Fitchburg Railroad Company, App’lt.

      (Court of Appeals,

      Filed March 12, 1895.)

    1. Negligence—Licensee.
    A railroad company does not owe, „to a person, who is upon its land merely by permission for his own convenience, the duty of active vigilance to see that he is not injured.
    3. Same.
    From the fact that the company is engaged upon its own land in simply doing that which is necessary to do in order that it may carry on its business properly and fails to exercise the highest vigilance in order to protect " from possible harm children who may stray upon its land for no other purpose than recreation, no finding of negligence can be permitted.
    Appeal from judgment of the general term of the supreme court in the third judicial department, entered upon an order which affirmed a judgment in favor of plaintiff entered upon a verdict and also affirmed an order denying a motion for a new trial. T. F. Hamilton, for'app’lt; Henry T. Nason, for resp’t.

       Reversing 60 St. Rep. 539.

   Peckham, J.

The defendant ow.ned a plot of ground in the northern portion of the city of Troy, bounded by four different streets. Quite a large portion of its land was unfenced and the public had for a number of years been accustomed to walk across this plot for the purpose of shortening the distance, instead of going around by the public streets. The land was approached from the north on the same grade as the public street and the defendant laid its tracks through the street and on to the plot for the purpose of using it in the ordinary transaction of its business. It was not used for the purpose of a depot and the land itself was rough, uneven, overgrown with weeds and grass and not fit for use by horses and wagons and was not so used. The public were not invited upon the land in any sense further than that the defendant had not taken occasion to prevent the public from using a portion of it as a footpath for the purpose already stated. The footpath thus marked out by use ran within fifteen or twenty feet of the turntable of the defendant, -which was used by it in the ordinary course of its business. The surface of the table was in some places about three feet above the grade of the plot and at others it was eight or nine feet above grade. The only way to approach it on the level was by the use of the tracks of the defendant which led on to the table and it was used for the purpose of taking the defendant’s engines and turning them around. The turntable was built in the usual manner and was in perfect repair. The main tracks of the defendant ran through $he eastern portion of the plot. The turntable was west of the main tracks.

On the 31st of August, 1888, the plaintiff, whp was at that time a child of the age of five years and nine months, had come upon the defendant’s premises, and, in company with several other and older boys, was playing on the turntable, and, in the course of turning the table around, the plaintiff had his leg caught between the rail on the table and the rail on the adjoining earth and he was severely injured. This action has been brought for the purpose of recovering damages for those injuries, and a recovery has been had which has been sustained by the general term.

Plaintiff bases his right to maintain this action upon the allegation that the defendant, by permitting the public to go upon its land in the manner stated, had in effect invited such entrance, and was bound on that account to use greater care to prevent an accident of this nature.

A further ground is stated that, in using the turntable, even upon its own property, under circumstances which rendered it probable that children would come upon the land and play upon the turntable, it was bound to the exercise of greater care than it had observed; that it was bound to guard the table in such a way that children could not come upon it, or to station a man there to prevent their entrance, or else the defendant should have used some kind of a device which would or might prevent the turning of the table while it was not in use by defendant. The defendant contends that the plaintiff had not been invited to come upon its grounds, either expressly or by any implication arising from its conduct in simply permitting .the public to cross a portion of its grounds as a snort cut between two streets, and - that it was not bound to any active vigilance in the matter, and was only bound to such reasonable care and caution as any one ought to take to prevent injury to another, and that, guided by that rule, it had not, as matter of law, been guilty of any negligence.

As to the assumed invitation held out to the ‘public, there is nothing in the facts found in this record which justifies any such assumption. The plaintiff was not on the land by invitation of the defendant nor in its business, but for his own purposes totally disconnected with the defendant’s business. He was not a trespasser in the sense of his being unlawfully upon the premises, because the defendant, by its course of conduct, had impliedly granted a license to the public to use the land for the purpose above mentioned. This license, of course, could at any timehave been revoked, and then any one going upon the land would have been a trespasser. But under the circumstances, treating the plaintiff as an adult, and simply upon the question of the invitation held out to him, he was there by sufferance only. The defendant had no right intentionally to injure him, and it would be liable if it heedlessly or carelessly injured him while performing its own business. It owed him a duty to abstain from injuring him either intentionally or by failing to exercise reasonable care, but it did not owe him the duty of active vigilance to see that he was not injured while upon its land merely by permission for his own convenience. Nicholson v. Erie R’way Co., 41 N. Y. 525; Byrne v. N. Y. C. & H. R. Railroad Co., 104 id. 363; 5 St. Rep. 722 ; Splittorf v. State of New York, 108 N. Y. 205 ; 13 St. Rep. 472 ; Cusick v. Adams, 115 N. Y. 55 ; 23 St. Rep. 548. We think there is no proof whatever that the defendant, so far as its duty to plaintiff is concerned, failed to exercise reasonable care in the conduct of its business with regard to this machine.

We are of the opinion that the defendant has not been shown guilty of a violation of its duty, nor has a question been made for the jury in that respect by proof that it used the turntable in the manner it did. It is true that some means might have been adopted which possibly might have prevented the happening of this accident. The proof is that turntables are not generally constructed with bolts for the purpose of keeping them steady. Such bolts do not come with the table froin the factory. Nothing of that kind is essential to the machine or for its legitimate and proper use. The table might have .been kept so fastened or locked when not in use that people could not turn it without unfastening or unlocking it, and the defendant might even have built a wall around it so high and guarded it so closely as to prevent any access to it by children at any time. But was defendant bound to do so ? Did it owe any such duty to the public or to this plaintiff? The turntable was on its own land; it was used by the defendant for the sole purpose .of properly conducting its own business; it was a fit and proper machine for that purpose; it was not of the nature of a trap for the unwary; it was not built in any improper or negligent way with reference to the transaction of the business of the defendant. What further duty did it owe to those who had no business upon its land, who came there unasked and whose presence was simply tolerated?

Upon the question of alluring plaintiff, we do not think it can be correctly said defendant either enticed or allured him to come upon its land.

The whole case in this aspect rests upon the doctrine that the turntable was, as to children of tender years, a dangerous and at the same time an enticing machine, one which, when seen, would inevitably and infallibly allure children to come upon it, for the purpose of playing upon it, and that the natural and probable result of such play would be the injury of the child. Under such circumstances it is claimed that a person owning such a machine, although it be used on his own land, is bound to exercise extra vigilance for the purpose of preventing injury to children who come upon the defendant’s land allured by the machine and ignorant of its dangers. 'We do not think the facts of this case bring it within any such principle. The leading case m this country, and one which undoubtedly sustains the plaintiff’s contention .that it is a case for the jury, is that of R. R. Co. v. Stout, 17 Wall. 657. That case has been followed in many states. In Missouri, Koons v. R. R. Co., 65 Mo. 592; in Kansas, Ry. Co. v. Fitzsimmons, 22 Kans. 686; S. C., 31 Am. Rep. 203, reporter’s note at p. 206 ; in California, Barrett v. So. Pacific Co., 91 Cal. 296 ; and in some other states. The contrary principle has been announced and held in Daniels v. R. R. Co., 154 Mass. 349, and Frost v. Eastern R. R. Co., 64 N. H. 220.

We think the better rule is laid down in the two cases last cited. We do not assert that the defendant owed no duty to the plaintiff under the circumstances existing, but we think it did not owe the duty of such active vigilance as would be necessary to exist in order to send the case to the jury and permit it to find the defendant guilty of negligence in this case. The court in McAlpin v. Powell, 70 N. Y. 126, while distinguishing it from the Stout case, supra, expresses doubt of the correctness of the application of the principle in the latter case.

We have not had occasion to decide the question up to this time, but now that it is presented, we not only reiterate the doubt which he expressed in the McAlpin case, supra, but we think that the question of the defendants negligence was erroneonsly submitted to the jury in the Stout case, and that we ORght not to follow it as a precedent. We think it is not a question of fact to be submitted to the jury for its determination whether the defendant has or has not been guilty of negligence under such circumstances as appear in this case. Upon such facts we hold the defendant has violated no duty it owed the plaintiff. It is not contended for a moment that a person on his own land may under all circumstances do anything that he. chooses without being held liable to answer in damages for injuries which are direct and probable and natural results of his action. We only say this is no such case. The case of Bird v. Holbrook, 4 Bing., 13 Eng. Com. Law, 667, is cited as analogous in principle to that which plaintiff urges in this case. We do not think so. The defendant in that case for the protection of his property, some of which had theretofore been stolen, set a spring gun, without notice, in his walled garden at a distance from his house. The plaintiff, who climbed over the wall in pursuit of a stray fowl, having been injured, it was held that the defendant was liable to him in damages. In that case the plea was made that the defendant had the right to protect his own property, and that one who was injured without having been invited upon the land, and who was unlawfully there, could maintain no action. It was held that the action was maintainable, for otherwise it might result in a mere trespass being made a capital offense. Chief Justice Best said that the practice (without giving notice) was inhuman and the proof showed that the defendant had placed the spring gun on the wall for the express purpose of doing injury and that he had refused to give notice of its existence on the ground that if he gave notice he would fail to catch any one. The chief justice said that the defendant intended that the gun should be discharged and that the contents should be lodged in the body of his victim, and that he who sets spring guns without giving notice is guilty of an inhuman act, and if injurious consequences ensue he is liable to yield redress to the sufferer. The difference in the two cases is so plain as to require no discussion.

Cases are also cited where the defendant, for the purpose and with the intention of enticing his neighbor's dogs upon his premises, set traps very near the line of the highway, and then baited them with decaying meat, so that the scent was cast not only in the highway but upon the private premises of the plaintiff, whose dogs taking the scent came upon the defendant’s grounds and were taken in a trap and thereby killed. One of such is the case of Townsend v. Wathen, 9 East, 277. The court held the defendant liable upon the ground that one who sets traps to catch his neighbor’s dogs, although the traps were set on his own ground, was liable f >r his wrongful intent and act and it was fit to be left to the jury whether it was not defendant’s intention to catch the plaintiff’s dogs, and it was held that a man must not set traps of a dangerous description in a situation to invite, and for the particular purpose of inviting, his neighbor’s dogs, as it would compel them, by their instinct, to come into the trap. The act of the defendant in that case was not done in the prosecution of his immediate and proper business, but, as the court held, was a mere malicious attempt, successful in its result, to entice his neighbor’s animals upon his property, and the enticement was effected by the means spoken of.

Quite a discussion upon the subject of the acts of an owner upon his own land, directed to the preservation of game .or to the destruction of dogs, etc., is to be found in the case of Dean v. Clayton, 2 Eng. Com. Law, 461. In that case the court was equally divided, and so no judgment was rendered. The distinction is clear between acts of the nature spoken of in this case and those which are performed by an individual in the legitimate and honest conduct of his own business upon his own land. As is said by Mr. Justice Cowen in Loomis v. Terry, 17 Wend. 497: “ The business of life must go forward and the fruits of industry must be protected. A man’s gravel pit, is fallen into by trespassing cattle; his corn eaten or his sap drunk, whereby the cattle are killed; his unruly bull gores the intruder,- or his trusty watch dog, properly and honestly kept for protection, worries the unseasonable trespasser. Such consequences cannot be absolutely avoided.” The case of Clark v. Chambers, L. R., 3 Q. B. D. 327, is also cited as in some degree applicable. In that case the dedefendant erected a barrier along a way which it was admitted he had no legal right to erect. It was erected for the purpose of keeping people from traveling where they had a right to travel. The barrier which he erected was armed with spikes, and was a dangerous obstacle. Some person, without the defendants authority, removed a part of the barrier from where the defendant had placed it and put it into an upright position across a footpath. The plaintiff, on a dark night, was lawfully passing along the road on his way from one of the houses to which the footpath led, when he came in contact with the spikes in the barrier and injured one of his eyes. The jury found that the barrier was in the road and dangerous to the safety of a person using it. It was held that the defendant, having unlawfully placed a dangerous instrument in the road, was liable in respect of injuries occasioned by it to the plaintiff, who was lawfully using the road, notwithstanding the fact that the immediate cause of the injury was the intervening act of a third party in removing the dangerous instrument to the footpath from the carriageway where defendant had placed it. In that case you start out with, the admission that the act of the defendant was unlawful, and all that follows thereafter was held by the court to be the natural and probable result of his unlawful act.

In Lynch v. Nurdin, 1 Adol. & El. [N. S.] 29; S. C., 21 Eng. Com. Law, 422, the plaintiff was a child seven years of age and the cartman of the defendant went into a house in London and left his horse and cart standing at the door without any person to take care of them, for about half an hour. The plaintiff got into the cart during the cartman’s absence, and another boy led the horse _ on, and as plaintiff was about getting off the shaft the horse started and plaintiff fell and was run over by the wheel, and his leg broken. The trial justice left it to the jury to say, first, whether it was negligence in the defendant’s servant to leave the horse and cart for half an hour, and, secondly, whether that„negligence occasioned the accident. There was a verdict for the plaintiff. On the return of an order to show cause why a new trial should not be had, Lord Denman, Chief Justice,' held that the case was properly submitted to the jury and the defendant was properly held negligent by the jury, and although the child had no business on the cart, and if an adult it would be said that his own negligence contributed to the injury, yet the child merely indulged his natural' instinct in amusing himself with the empty cart and the deserted, horse, and therefore, it could not be sqid that he was negligent or that his action contributed to the injury within the legal sense of that term, and, therefore, the defendant could not be permitted to avail himself of that fact. In the course of his opinion the chief justice said there was a clear distinction to be taken between the willful act done by the defendant in the spring gun case, deliberately planting a dangerous weapon in his ground with the design of deterring trespassers, and the mere negligence of the defendant’s servant in leaving his cart in the open street. . In the latter case the liability of defendant is simply for negligence. There is a great difference in the facts between the case of Lynch v. Nurdin and the present case. Leaving a horse and cart in a public street unattended and loose, subject to- natural observation and interference from children passing along the street, might beheld a proper question for the jury to say whether it was or was not negligence, while in the case of a defendant engaged upon his own land in simply doing that which it is necessary to do in order that he may carry on his business properly and who fails to exercise the highest viligance in order to protect from possible harm children who may stray upon his land for no other purpose than recreation, we think there is an absence of. any fact upon which a jury ought to be permitted to find negligence. The defendant in the one case was not upon his own land nor was he engaged in the proper transaction of his business thereon, but, on the contrary, he was in □ a public street and improperly left his horse and cart therein unattended and where others, and among them children, had the same right to be that he had. In the case of this defendant, on the other hand, the turntable was on its own land, it was a proper and appropriate machine for the carrying on of its business, it was properly made and it was properly used by the defendant. To liken such a case to the allurement" of dogs by the spreading of tainted meat over traps on defendant’s lands, done for the very purpose of injury, is as it seems to me to lose sight of the different principles upon which the cases rest;

At any rate we think that the plaintiff failed to show any actionable negligence on the part of the defendant, and a submission to the jury of the question of such negligence was error. All that can be said on either side of the question has been set forth in the Stout Case and the various other cases cited above, and a continuation of the discussion would be fruitless.

We think the judgment for plaintiff must be reversed and a new trial granted, costs to abide the event.

All concur.

Judgment reversed.


text:
    Catharine Haines, as Administratrix, etc., Resp’t, v. The New York Central and Hudson River Railroad Company, App’lt.

      (Court of Appeals,

      Filed March 5, 1895.)

    Appeal—Direction of verdict.
    Where a defendant makes a motion for a direction without specifying any ground, and the motion is denied, and he excepts to the ruling and a verdict is rendered against him, he cannot maintain his exception, upon appeal, on showing that the facts found did not authorize the verdict, provided the failure of proof might have been supplied if the attention of the opposite counsel had been called to the defect.
    Appeal from judgment of the general term of the-supreme court of Buffalo, entered upon an order, which affirmed a judgment in favor of plaintiff, entered upon a verdict, and also affirmed an order denying a motion for a new trial.

      James F. Gluck, for app’lt; George W. Cothran, for resp’ts.
   Andrews, Ch. J.

The plaintiff’s intestate died from injuries received while passing along the side of the track of the defendant on Webster street in the city of Tonawanda. He had passed up Sweeney street to its junction with Webster street and then, at the evidence shows, looked up and down the railroad track and, no train being in sight, turned on to Webster street and proceeded for about forty feet along and very near the track -of the railroad on Webster street, when he was hit by a train coming behind him, causing the injury of which he died. There was evidence tending to show negligence in the management of the train, and the defendant’s negligence is not, upon this appeal, denied. The case at the 'trial was defended both on the ground that there was no negligence on the part of the defendant, and that the deceased was guilty of contributory negligence in not looking after leaving the corner of Sweeney street to see whether there was an approaching train; although he walked thereafter a distance of nearly forty feet in near proximity to the track. The case was contested on the trial on both points, and evidence was given upon the issues by each party respectively. On the conclusion of the whole evidence the defendant’s counsel asked the court to direct a verdict for the defendant, but stated no ground, nor did he call the attention of the court or the opposite counsel in any way to the specific point on which the motion .was based. The motion was denied and the court then submitted' the case to the jury in a charge which fully presented the facts disclosed, bearing upon the question of the defendant’s negligence and the contributory negligence of the deceased. The charge was not excepted to by either party and no requests to charge were made by either. The only exception in the case is the exception to the denial of the motion, to direct a verdict, as above stated. The jury rendered a verdict, for the plaintiff, and this appeal is brought on the single point that the decedent was, upon the evidence, as a conclusion of law,, guilty of contributory negligence, and the appellant’s counsel relies upon the exception referred "to as raising the question.

We think the general exception to the ruling of the court denying the defendant’s motion to direct a verdict is insufficient to raise the question now presented. When on a trial by jury a general motion to direct a verdict is granted and an exception is take by the other party, he is entitled on appeal to a reversal if there was any evidence tending to establish any material fact in his favor, which, if found by the jury, might have changed the result. Trustees of East Hampton v. Kirk, 68 N. Y. 460 ; Stone v. Flower, 47 id. 566. His exception challenges a scrutiny of the whole evidence, and the party upon whose motion the direction is made and who is the-actor in procuring it, takes the risk, and it is no answer to the exception that if the other party had called the attention of the court to the evidence which required a submission of the case to the jury, the direction might not have been given. But where a defendant, as in this case, makes a motion for a direction without specifying any ground, and the motion is denied, and he expects to the ruling and a verdict is rendered against him, he cannot maintain his exception on appeal on showing that the facts found did not authorize the verdict, provided-the failure of proof might have been supplied if the attention of the opposite counsel had been called to the defect.

It has been frequently held that a general objection to evidence without specifying any ground is ineffectual, unless the evidence offered could under no circumstances be rendered competent, and an exception to the denial- of a motion for non-suit, not pointing out any defect in the evidence, will not entitle the party to a reversal on appeal, on the ground that the evidence was insufficient to sustain the verdict if the defect was, in its nature, one which might have been remedied if attention had been called to it.

The point attempted to be argued in this case was the contributory negligence of the intestate, in not looking behind him for the approaching train after he left the corner of Sweeney street. It was a question which, in its nature, was one upon which additional proof might have been given by the plaintiff. It may be, and prqbably is true that her evidence on that question had been exhausted, but we cannot know this for certainty. The precedent which a reversal of this judgment would set, that a general exception to a refusal to direct a verdict raises the question whether the evidence given was sufficient to sustain the verdict given, when the attention of the court and counsel on the trial was in no way called to the defect, and when the defect was in its nature amendable, would tend in many cases to great injustice. The case of an action for conversion where a demand was necessary, but was not proved, although it may have been made, is an illustration.

It is but fair to the court and to the parties that in some general way, at least, attention should be called by the party asking a direction to the point upon which the motion is based. Such a practice will prevent surprise and contribute to an intelligent comprehension by the court and the opposite party of the situation, and unnecessary litigation will thereby in many cases be avoided.

The judgment should be affirmed, with costs.

All concur, except Finch, J., not voting. Judgment affirmed.