text:
    Elizabeth T. Favro, Resp't, v. Troy and West Troy Bridge Company, App'lt.

      (Supreme Court, Appellate Division, Third Department,

      Filed April 14, 1896.)
    1. Negligence—Presumption.
    The fact that an accident has happened which might possibly have been prevented, does not necessarily indicate negligence upon the part of the defendant.
    '2. Same—Similar accident.
    That which never happened before, and which in its character is such as not to occur naturally to a prudent man, to guard against its happening at all, cannot furnish good ground for a Charge of negligence in not foreseeing its possible happening and guarding against that remote contingency.
    Appeal from a judgment in favor of plaintiff, and from an •order denying a motion for a new trial.
    G. Robertson, Jr. (Matthew Hale and Albert C. Tennant, of counsel), for app’lt; John H. Gleason, for resp’t.
   HERRICK, J.

This is an appeal from a judgment entered upon the verdict of a jury in favor of the plaintiff, and against the defendant, for the sum of $7,000, and from an order denying •a motion for a new trial, made upon the minutes of the court. It appears that the defendant owns and operates a bridge crossing "the Hudson river, from West Troy, in the county of Albany, to East Troy, in the county of Renssalaer. On the outer side of the bridge there is a walk intended for foot passengers, five feet seven-inches in width; then a girder two feet three inches wide, which is part of the structure and support of the bridge ; then the roadway proper, twenty-three feet in width, and comprising — First, next to the girder, a space three feet nine inches between the-girder and the railroad tracks; second, two lines of railroad tracks with a space between them ; third, upon the other side, a space three feet nine inches between the nearest railroad track and the girder on that side; fourth, a girder of the same width as upon the-other side; and, fifth, an outer walk of the same width as that on the other side. Near the center of the bridge there is a draw of from 250 feet to 800 feet in length. About the center of the draw there is a trapdoor upon the roadway between the girder and the north railroad track, two feet six inches in length along the girder; and extending out from the girder towards the railroad track, two-feet six inches, there is a ring attached to the northwest corner of the trapdoor next to the girder, with a chain attached to the ring passing over a pulley then dropped through a hole in the bridge next to the side of the girder, so that a person underneath the door, desiring to raise it, can do so by pulling this chain. The hinges of this trapdoor are on the east side thereof; the ring and chain • áre at the west; so that, when the door is raised, it rises-from the west, and describes an arc towards the easterly side. It was constructed' to allow the employes of the bridge to go down below, to oil_ the machinery of the draw, and for other necessary purposes. It had to be located in that part of the bridge, and appears to have been constructed and operated in the same manner as is common upon bridges of that character. It appears from-the evidence that the trapdoor was properly constructed, and was in a safe and proper condition. The foot path or way, it appears, was composed of boards laid lengthwise of the bridge, with interstices between them.

The plaintiff is a resident of West Troy. On April 24, 1893,. she went over to Troy, wheeling a baby in a baby carriage; and, upon her return from Troy to West Troy, she did not take the sidewalk or path for foot passengers, but that portion of the way on the north side of the bridge between the girder and the railroad track, as hereinbefore described. She says that her reason for doing so was that the interstices between the boards, of the foot way were so wide in places that the wheels of the carriage were liable to get between the boards, and, in addition, that she had been previously informed by an employe of the defendant that it was safe to take tlie way between the girder and railroad tracks. She was entirely familiar with the bridge, had passed over it repeatedly, and claims that she did not notice the trapdoor at the time of the accident. The baby carriage had just passed' over the door, and she had stepped upon it, when an employe of the defendant, who had gone below, desiring to come up, pulled' upon the chain, and raised the trapdoor, by means of which the. plaintiff was thrown upon the bridge, and received the injuries; complained of in this action. It appeared in evidence that, dur-i ing ten years before the happening of the accident, more than ’7,500,000 foot passengers, averaging 2,100 daily, had crossed the bridge, and that no accident had occurred. It also appeared ■that women were accustomed to cross with baby crrriages, many of them taking the same route as taken by the plaintiff in this action.

A motion was made at the close of the plaintiff’s evidence, and again at the close of all the evidence in the case, for a nonsuit, upon the ground, among others, that there was no negligence shown upon the part of the defendant; that the trapdoor in use was the ordinary and customary kind used upon bridges of this kind; that there is no evidence that it was improperly constructed or improperly used, and that the bridge had been used for over twenty years; that millions of people had crossed it; that, up to the time of this accident, no accident had occurred; and that no injury had ever been received in consequence of the trapdoor; and that the defendant had no reason to apprehend that any injury was likely to result therefrom to any passenger. The-motions were denied, and the court, in charging, said:

“The only possible question with respect to the defendant’s-negligence is just this, viz.: Ought they to have permitted-their servants to lift the trapdoor without in some way ascertaining whether a person was upon it, or about to come-upon it?”

It seems to me that this case is within the principle laid down, in Dougan v. Transportation Co., 56 N. Y. 1; Crocheron v. Ferry Co., id. 656; Loftus v. Ferry Co., 84 id. 455; Burke v. Witherbee, 98 id. 562 ; Hubbell v. City of Yonkers, 104 id. 434; 5 St. Rep. 730; Lafflin v. Buff. & S. W. R. R. Co., 106 N. Y. 136; 8 St. Rep. 596; Beltz v. City of Yonkers, 148 N. Y. 67.

It is claimed upon the part of the respondent that the defendant should be held to the same liability as are common carriers of passengers. Assuming that to be the correct rule, still it seems to me-that the evidence in this case fails to establish actionable negligence upon the part of the defendant. “A carrier of passengers-is not bound to foresee and provide againts casualties never before known, and not reasonably to be expected. * * * Hence his-duty is not to be estimated by what, after an accident, then first appears to be a proper precaution against a recurrence of it.” Cleveland v. Steamboat Co., 68 N. Y. 306.

In Hubbell v. City of Yonkers, 104 N. Y. 434; 5 St. Rep. 730; the plaintiff had, with his horse and carriage, gone over an embankment at the side of a street; and the plaintiff’s contention was-that the defendant was negligent in not having sufficiently guarded it, to prevent horses going over; and the court said:

“ The very fact that for ten years or more this embankment had been in the same condition, and that, so far as appears, no similar accident has occurred, is most cogent evidence of the lack of any negligence on the part of the city in failing to guard the spot.”

In the case at bar it appears that no accident had ever occurred from the use of this trapdoor before; that, during the preceding ten years, millions of foot passengers had gone back and forth over the bridge; that it was a common occurrence for women withl baby carriages to pass and repass over the very portion of the bridge where this accident happened. Experience had not shown! that any danger was to be apprehended from this trapdoor that iC was necessary to guard against. Cleveland v. Steamboat Co., supra. The fact that an accident has happened which might possibly have been prevented does not necessarily indicate negligence upon the part of the defendant. “That which never happened before, and which in its character is such as not to naturally occur to a prudent man, to guard against its happening at all, cannot, when in the course of years it does happen, furnish good ground for a charge of negligence in not foreseeing its possible happening and guarding against that remote contingency.” Hubbell v. City of Yonkers, 104 N. Y. 434-439; 5 St. Rep. 730. Of course, it wag apparent that a person might step on the trapdoor as it was being raised, or might be upon it when it was raised , “ but that this was likely to occur is negatived by the fact that multitudes of persons had passed over the bridge without the occurrence of such a casualty.” Loftus v. Ferry Co., 84 N. Y. 455-460. While it was apparent, as I have stated, that it might happen that a person should step on the trapdoor while it was being raised, yet the possibility that that should happen in this portion of the bridge, which was aside from the regular pathway, and separate from it by a raised girder, over two feet in width,—that a person traversing the bridge should step upon this trapdoor just at the time it was being raised,—was so remotea possibility, as was demonstrated by the use of the bridge for so many years, during which millions of people passed over it, without its occurrence, rendered the accident one of so unlikely a character that the defendant cannot be •charged with negligence in not having anticipated its happening, •and guarded against it. “ It was not an aceident of a character which was likely to happen, and there was no negligence in failing to guard against a very unlikely possibility.” Glasier v. Town of Hebron, 131 N. Y. 447-453; 43 St. Rep. 319.

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

All concur.


source: Caselaw Access Project

author: O’BRIEN, J. INGRAHAM, J. (concurring). PATTERSON, J. (dissenting.)

license: Public Domain

text:
    John F. Maher et al., App'lts. v. Della Garry et al., as Executors, etc., Resp'ts.

      (Supreme Court, Appellate Division, First Department,

      Filed April 10, 1896.)

    1. Evidence—Pabol
    An exception to the general rule that parol evidence is inadmissible to contradict or vary the terms oí a written instrument, embraces those cases which recognize a written instrument as existing and valid, but regard it, as incomplete, either obviously or at least possibly, and admit parol evidence not to contradict or vary, but to complete, the entire agreement of which the writing is only a part. Two things are essential to bring a case within this class: (1) the writing must not appear upon inspection, to be a complete contract, embracing all the particulars necessary to make a perfect agreement, and designed to express the whole arrangement between the parties; (2) the parol evidence must be consistent with, and not contradictory of, the written instrument.
    2. Specific performance—Indefinite contract.
    Equity will not undertake to enforce specifically a contract which is definite and uncertain in its character.
    3. Same.
    A parol agreement, which states “that, if the plaintiffs conform to the agreement, they are to continue the business until the amount due testator is paid,” and does not indicate what is meant by “conforming” to the agreement, nor fix any time or manner for the payment of the money, is too indefinite and uncertain to be specifically enforced in equity.
    4. Same.
    If the parol agreement is a part of the general contract, it was held, not to annul the power given to testator to alter or cancel any part thereof, and that he had the right to rescind the parol agreement not to limit by codicil the power of his executors to annul the contract.
    Appeal from a judgment dismissing the complaint.
    In May, 1892, and for years prior thereto, the defendant’s testator, Thomas Garry, was engaged in the retail dry goods business in Grand street, in this city. The plaintiffs were clerks in his employ ; Maher receiving $33 per week, and Molohan receiving $18 per week. The testator had an investment of upward of $151,000 in the business. He wanted to withdraw his capital, and gradually retire from active participation in the business; but he was not willing to relinquish any part of his sole ownership until he had withdrawn this amount and interest. To effectuate this object, he requested the plaintiffs to enter into a certain contract, the essential points of which, so far as they relate to the matters involved, are that the'business should continue until such time as Thomas Garry could withdraw from it his capital, with interest; that the plaintiffs should each contribute $4,000 to the business; that, during the period while withdrawals were being made by Garry, the plaintiffs, should be allowed to withdraw the same amount each week that they had formerly been receiving as salary, and that during such time they should have no further interest in the business or profits; that, upon the withdrawal of his capital and interest, it should become the duty of Garry to execute to each of the plaintiffs good and sufficient transfer of a one-fifth interest in and to the business, and all the capital, assets, and effects, good will, etc., connected therewith, except the lease. Further provisions of the contract are as follows:
    “Eleventh. It is further mutually and expressly agreed by the parties hereto that the party of the first part, his executors, administrators, successors, or assigns, shall at any time subsequent to the date of this agreement, and before she withdrawal of said full sum of $151,327.45 and interest, have full power to in all respects terminate, rescind, and annul said agreement, as to either or both of said parties of the second part, if he or they shall see fit so to do, free from any claim for damages or otherwise on the part the said parties of the second part, or either of them; provided, howevér, that the said party of the first part, or his executors, administrators, successors, or assigns, shall, in case of such rescissions, repay to the parties of the second part such sums of money as they may have theretofore contributed to the capital of the. said business, as provided in section second hereof, together with interest on such sum from the time of contribution thereof. If said contract shall not be so rescinded until the full' withdrawal of said sum of $151,827.45, it shall thereafter be binding on said party of the first part,-except as herein provided. It is also understood and agreed that the party of the first part may at any time assign, transfer, or set over his entire interest in the said business, and the assets, effects, and profits thereof, or any portion-of such interest, to any person or persons whatsoever, and that any such transferee shall be admitted as a partner in the said firm, if desired by the party of the first part; it being the understanding and intention of the parties hereto that during the whole time of the continuance of the said business, as set forth in section first hereof, the said party of the first part shall remain the sole owner of the said business, and the assets and effects thereof, with the same full power of disposition or transfer thereof, in case he sees fit so to do, as though this agreement had not been made.' During said time the party of the first part may also, at will, alter the provisions of the foregoing sections.” By the fifteenth clause it was provided that, after the capital had been withdrawn, the testator, or his representatives, successors, or assigns, should have the deciding voice as to any matter that might arise in the conduct of the business, and might at any time change any of the provisions in relation to such conduct. The sixteenth clause provides that, after the testator has been repaid his capital and interest, he or his representatives “ shall have the power, at any time during the continuation of the said business, to transfer his interest therein, or in the profits thereof,” to such parties as he or they may see fit. The seventeenth clause provides that, if the testator or his representatives choose to form a special partnership after his capital is withdrawn, he may designate the general partners, “and he and his representatives shall have full power in all respects to fix the particular terms and conditions of such special partnership which shall bind said parties of the second part.” The twenty-third clause is as follows: “Twenty Third. It is further expressly provided that the death of the party of the first part during any of the proceeds herein specified shall not affect his rights, or those of his executors, administrators, successors, or assigns, but that each and every provision herein contained shall apply to such executors, administrators, successors, and assigns with the same force and effect as they would have had as regards • said party of the first part had such death'not occurred; and if such death shall occur after the withdrawal of said sum of $151,327.45 and interest it shall not cause any alteration in the general partnership, if organized, or dissolve said special partnership, if formed; but such, representatives and assigns, or any persons appointed by them,; •shall in all respects occupy the position of the said party of the first part, and said business shall continue as herein provided.”

      What took place when this paper was offered for signature is thus detailed by one of plaintiffs’ witnesses: “At the time of reading, Mr. Molohan objected to signing it under its present conditions. He said, ‘Mr. Garry,’ who was present, and myself, that as far as Mr. Garry was.concerned, that he would trust him, and sign it, but he said, ‘You are liable to die. [He was looking sickly at the time.] What would your executors do? What position would it place us in if we would sign this ? ’ Mr. Garry replied, stating that he would make a codicil to his will directing his executors to conform to the agreement; that is, if they conformed to the agreement, to continue the business until the amount was paid and that the contract would be fulfilled.” And thereupon the agreement was signed. Upon cross-examination, this witness stated that his recollection was that “there was objection made as the time of reading certain paragraphs. I could not, without looking at the agreement, remember the numbers of the paragrapht to which objection was made.” “There was a protest against signing under such provisions. Mr. Molohan made it, before the reading was completed. That is my recollection. Mr. Molohan made a protest.- As I have stated before, he said to Mr. Garry: ‘As far as you are concerned, I would trust you under ¿he cir cuinstances. But you are a sickly man. You may die; and, in case the executors should desire to close this business, what would our position be? Mr. Garry then stated to them that- he would add a codicil to his will, directing his executors to have that business continued provided these young men, Maher and Molohan, would comply with the contract-.” It was stipulated that the lawyer who drew the agreement would give similar testimony to that above detailed, with the addition that he would testify “that Mr. Molohan’s statements at the interview with regard to his confidence in Mr. Garry were that he was willing to trust Mr. Garry as to continuance of the business during the latter’s lifetime, but that he objected to trusting Mr. Garry’s executors "under the agreement as drawn.” Thereupon the plaintiffs said that with that understanding they would sign it, which they did; and thereafter they entered upon the conduct of the business, and complied with all their duties under the contract, including the payment of $4,000 each, as required by its terms, which, in the -event of the contract being canceled, was to be returned, and which with interest, has been tendered by the defendants. During the intervening period between the date of the contract and the commencement of this suit, Thomas Garry, before his death, and since that time, his executors, have withdrawn $114,844.76 out of the $151,000 and upward which constituted his capital, and which latter sum, under the agreement, he was entitled to draw before the plaintiffs acquired any rights in such business. After the execution of the agreement, Garry executed a codicil to his will, in which he incorporated a provision somewhat similar to that which he had promised to provide. He subsequently executed another will, which contained no such provision, by which these defendants were appointed as executors; and as such, claiming the right to do so, they have notified the plaintiffs, since the death,. of Garry, of their desire to cancel and annul the agreement.
    Frederic R. Kellogg, for app’lts; Samuel Untermyer, for resp’ts.
   O’BRIEN, J.

The object this suit is to obtain a enjoining and restraining the defendants, as executors of Thomas Garry, from attempting to rescind, annul, terminate, or modify the contract between plaintiffs, and the said Garry, and from liquidating, selling, disposing of, or interfering with, the business, or with its assets and effects, or with the control and management thereof by the plaintiffs, and from excluding them from the premises occupied by the business, or from its books and property, upon the grounds that, by the terms of the agreement, the decedent became bound not only to execute a written contract, which was actually signed, but also to make a will of such a nature• that the executors should have no power, as against these plaintiffs, under the circumstances now existing, to wind up the business, and to do the things which they are now attempting to do; and that, either through innocent mistake or through fraud, the will which the decedent promised to execute was not, as a matter of fact, made by him.

The two questions which naturally present themselves at the outset are to whether the understanding or agreement relied upon as to Garry’s making a will could be proved by parol evidence, and, if it could, whether such shows a binding agreement. In reading the contract between the plaintiffs and Garry, it will be noticed that it contains covenants executed by both parties, and embodies provisions which assume to provide not only for the contingency of death, but for nearly every other conceivable contingency as well. Notwithstanding that thus the contract appears on its face to be complete, plaintiffs claim the right to establish, by parol, an agreement contemporaneous with the execution of the written instrument, which the respondents insist is inconsistent with the latter, but which the appellants claim is a collateral' agreement, and therefore, as coming within the class of exceptions, is not a violation of the rule which excludes the admission of parol evidence to vary, contradict or control a written contract.

In Thomas v. Scutt, 127 N. Y. 133; 38 St. Rep. 692, which is the latest expression of the court of appeals on this subject, it-is said:

“It is a general rule that evidence of what was said between the parties to a valid instrument in writing, either prior to or at the time of its execution, cannot be received to contradict or vary its terms. This rule is not universal in its application, because the courts, in their efforts to prevent fraud and injustice, have laid1 down certain exceptions, which, although correct in principle, are sometimes so loosely applied in practice as to threaten the integrity of the rule itself. The real exceptions may be grouped into, two classes, the first of which includes those cases in. which pároli evidence has been received to show that that which purports to be a written contract is, in fact, no contract at all. * * * The second class embrace those cases which recognize a written instrument as existing and valid, but regard it as incomplete, either obviously or at least possibly, and admit parol evidence not to contradict or vary, but to complete, the emive agreement, of which the writing was only a part. * * * Two things, however, are essential to bring a case within this class: First, the writing must not appear upon inspection to be a complete contract, embracing all the particulars necessary to make a perfect agreement, and designated to express the whole arrangement between the parties, for in such a case it is conclusively presumed to embrace the entire contract; second, the parol evidence must be consistent with, and not contradictory of, the written instrument.”'

Are the two things essential to bring a case within the exception allowed to the general rule present in the case at bar ? Is there anything to indicate upon inspection of the written agreement that it was not designed to express the entire understanding of the parties? And is the agreement thus supported by parol “consistent with, and not contradictory of, the written instrument ” ? We think it would be difficult to conclude, after reading the written contract, consisting of twenty-seven clauses, which apparently was designed to cover every possible contingency that could arise, that such an agreement was not on its face complete, and did not contain the entire agreement of the'parties. But assuming that we are justified in regarding the written contract as incomplete, and the parol agreement as collateral and supplemental, can it be said that it is consistent with the written agreement? The latter expressly deals with the rights, powers, and obligations of the testator’s executors with respect to the contractual relations then created by it; and the parol agreement must be regarded as relating to the same subject-matter, because its effect to destroy the very provisions of the written agreement which refer to the rights, powers, and obligations of the executors. It will thus be seen that both cover the same area. In each the subject was the powers of the executors of the testator to deal with the business with reference to which the contract was made, after his death. The written agreement gave to the executors the identical power to terminate the interest of the plaintiffs which was reserved by the testator to himself during his life. By the parol arrangement, as interpreted by the plaintiffs, the executors were to be precluded from exercising the right to terminate the contract so long as the plaintiffs conformed to its requirements. An agreement to make testamentary provisions prohibiting the defendants from interfering with the business is the equivalent of an agreement on the part of the testator that his executors should not exercise such right. Not only this, but the provisions evidence an intention upon Garry’s part that neither he nor his estate would be in any way legally obliged to perform any one act; and in this respect the plaintiffs were willing to take their chances. If, then, we give the force to the parol agreement claimed for it by the plaintiffs, it is not clearly inconsistent with, and does it not annul, the express provisions of the written contract ?

Without, however, deciding that the parol agreement is inconsistent with, and vyould tend to vary and contradict, the written instrument, and assuming that equity would enforce a distinct and -definite agreement, and give relief regardless of the operations of Tules of law or statute, when the result of recognizing such rules would be, not the prevention, but the commission, of a fraud, we are brought to the second consideration, as to whether the parol agreement was such a binding and definite contract that, if in writing, it would be enforced. If we assume, then, that Garry agreed to make a codicil directing his executors “ that, if the plaintiffs conformed to the agreement, they were to continue, the business until the amount was paid, and the contract ful-j filled,” it will be noticed that there is an absence, not only of any-, thing to indicate what is meant by “conforming” to the agree-" ment, but there is no time fixed when the amount to which the testator was entitled is to be paid. While living, he had “ full power to determine at what time and in what manner ” his capital should be drawn; and so, under the written agreement, the executors have the same power. But the .parol agreement is silent as to the time and manner in which the money was to be paid; and thus the executors, if the plaintiffs are right, are under obligation to permit the business to continue for an indefinite and uncertain period of time. There is abundant authority for the proposition that equity will not undertake to enforce specifically a contract which is indefinite and uncertain in its character. Stanton v. Miller, 58 N. Y. 192; Shakespeare v. Markham, 72 id. 400; Crosdale v. Lanigan, 129 id. 604; 42 St. Rep. 350. The plaintiffs, seeing the force of this, have offered to stipulate against any injury flowing to the estate from the absence of any definite provisión on this subject. But this does not aid us in determining the question as to the plaintiffs’ right to relief, which must be predicated upon the agreement itself, though if, upon that, we could reach a conclusion favorable to the plaintiffs, it might be that equity would require that the relief should be accorded upon certain conditions which the court would undoubtedly have the right to impose. Our conclusion upon this branch of the case is that the parol contract is too indefinite to be enforced. But, if definite, is it binding'?

The written contract imposed no obligation on Garry or his estate prior to the withdrawal of his capital. It is conceded that •Garry had the right, at any time during his life, before his capital was withdrawn, arbitrarily to cancel the agreement, and to return to each of the plaintiffs his $4,000. He was the sole owner of the business until such withdrawal of capital. He could sell the business, and the purchaser could cancel the agreement. In fact, the written agreement permitted him to do as he chose with the property, so long as any part of his capital remained in the business. And, even after it had been withdrawn, he was to fix the terms of any partnership, and the interests of the partners. _ If into such an agreement we read the parol understanding relied upon by the plaintiffs, can it be said that there was any binding obligation created ? It is not claimed that, if so written in, the clauses relating to the right of Garry in his lifetime to annul and cancel the agreement at any time before his capital was withdrawn would be in any way destroyed or impaired. Therefore, in respect to the agreement to make the codicil to his will, restricting the right of his executors, this was subject, as was every other provision of the agreement, to the arbitrary will and disposition of Garry. If, during his lifetime, he had canceled, the agreement, or had sold the business to another, then all the rights which the plaintiffs had under the agreement, including the provision for a codicil, would have fallen. If we are right in our reasoning, then it follows that he was at liberty at any time during life arbitrarily to change his mind in regard to making a codicil to his will, or' making any provision for the security of the plaintiffs after his death; and this power was not dependent upon his canceling the entire agreement, because, while any portion of his capital remained, he could annul any of its provisions. And that this was his understanding clearly appears, because he executed a codicil some time after, which, to a certain extent, complied with what plaintiffs claimed was the parol agreement, and later made a new will which had. no such clause as it is now insisted he should have included therein; and thus the evidence is afforded that he changed his mind on this subject. He was not required by the agreement to indicate in any way his change of mind, and he was therefore ;at liberty to notify them or not of such change.

It will thus be seen that we agree with the views of the learned trial justice that:

“ The plaintiffs concededly gave to the testator the absolute power to cancel during his lifetime. The trust which they reposed in his willingness to deal justly with them was fully as great as that which they would be expected to place in him if they placed a moral reliance upon his executing a favorable provision in his will. They were willing to trust him, at the same time, not to ■exercise unjustly the power to cancel and also to incorporate a provision in his will continuing the business. Both acts had to be performed in his lifetime. Both acts were left, not only to his ■sense of justice, but to his possible perception of the danger of ■continuing a business decreasing in value, or increasing in risk, in "times of financial distress; so that he might provide for himself or for his estate when he could no longer supervise it against the perils of the future. So considered, the whole transaction at the time of the signing of the instrument was consistent with the purposes and intentions of the parties ; and it is the most reasonable supposition that the plaintiffs relied upon his willingness to allow the business to continue after his death, if, in his judgment, it •should likely be safe to do so, rather chan, upon a legal obligation, to prevent after his death the doing of a thing which he might do in his life, and which legal obligation was nowhere incorporated into the lengthy and expressive instrument which contained the agreement of the parties.”

Apart, therefore,.from the question as to whether the oral agreement varied and was inconsistent with the written contract, and upon the grounds that such agreement is too indefinite to be on. forced, and is not binding, we think the judgment should be affirmed, with costs.

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

INGRAHAM, J. (concurring).

—The extremely unfortunate position in which plaintiffs now find themselves, and the manifest injustice of the position taken by the defendants in exercising the power given to them by the contract to terminate, rescind, and annul it at any time before the withdrawal of the full sum of $151,327.45, naturally incline us to find, if possible, some method by which we can prevent such injustice being done to the plaintiffs. We are, however, confronted with the contract that the plaintiffs have themselves executed. They have seen fit to agree that the defendants’ testator, his executors, administrators, successors, or assigns, shall have this right to terminate, rescind, and annul the agreement at any time before the full amount agreed to have been paid to the defendants’ testator from the business shall have been actually paid to them ; and it is that agreement that we are required to enforce. We cannot make a new agreement for the parties, nor can we deliberately overlook or disregard the express terms of the contract that the parties have made.

This provision of the eleventh clause of the contract is explicit, and gives to the testator and his executors the full and uncontrolled power, in their discretion, to terminate the agreement at any time prior to the final withdrawal of the sum specified. The evidence shows that that provision and its effect were clearly understood by the plaintiffs before they signed the instrument. Thus, witli their eves open, understanding what they were doing, they made the agreement. Having máde it, the testimony is that, at the same time, another and .independent agreement was mad© between the plaintiffs and defendants’ testator, and we are asked to enforce that agreement. I think it clear that the latter was not one that was in conflict with this written agreement that the par-' ties then executed, but one that was entirely independent of it, and not at all inconsistent with it. The testimony is that the; plaintiffs objected to executing the proposed written agreement, oni the ground that, while they would trust Mr. Garry, the contingency of his death was presented to them; and then the question, came up as to what the executors would do in case of Mr. Garry’s death, the contract giving to the executors the same power that! Mr. Garry had to terminate the contract. To meet the objection, it was not proposed to take away from the executors this power to rescind the contract. It was not proposed to restrict them as to what they could or could not do as between the plaintiffs and the executors in case of Garry’s death. Mr. Garry said to the plaintiffs that he would make a codicil to his will, directing his executors to have the business continued, provided the plaintiffs would comply with the contract; and with that agreement plaintiffs were content, and signed the contract. This understanding with Mr. Garry as to the codicil that he would execute would not be at all inconsistent with the discretion that the executors had to terminate the contract. Garry made no agreement with the plaintiffs that his executors would not exercise the power. He simply simply said that, by a codicil, he would direct his executors not to exercise it upon certain conditions; and as between the plaintiffs and the executors, it left them in the position by w hich the executors had the power to rescind the contract, the power being expressly given to them by the contract that was signed after Garry had agreed that he would make a codicil by which he would leave direction to his executors as to how they should exercise the power given them by the contract. The only effect that the execution of such a codicil would have as between the plaintiffs and the executors would be that, under it, the executors would have the power to continue the business if, in their discretion, they "considered it for the benefit of the estate. It might be that one of the executors or one of the legatees or beneficiaries under Garry’s will would have the right to ask the court to compel the executors to carry out Garry’s directions ; but these plaintiffs would not be in a po sition, under the contract they had signed, to ask the court for a judgment restraining the executors from enforcing this express provision by which power was given to them to rescind the contract.

A different question would have been presented had the plaintiffs, before the executors had formally rescinded the contract, tendered to the executors the amount that was unpaid of the sum that Garry or his estate was entitled to withdraw from the business, and then insisted upon the contract for the continuation of the partnership being performed. That, however, was not done. The amount had not at the time of the trial been withdrawn from the business, and, under the express provisions of the contract in force as between these plaintiffs and the executors, the executors had the power to terminate the contract, and the existence of such a codicil would not justify the court in taking away from the executors the power expressly given to them by the agreement.

I can see no escape from the conclusion that this judgment was right, unless we are prepared to make an entirely new contract for the parties, instead of enforcing the one that they have made. I concur, therefore, in the affirmance of the judgment.

PATTERSON, J. (dissenting.)

I am not able to agree with the views expressed in the opinion of the court in this cause, nor in the conclusion at which Mr. Justice INGRAHAM has arrived in his concurring opinion. It is conceded that the equities are overwhelmingly with the plaintiffs, but it is considered that the court is powerless to grant relief, by reason of supposed insurmountable obstacles in fixed rules of law applying to the contract relations existing between the parties. In my judgment, not only do those alleged obstacles not exist, but the intrinsic merits of the plaintiffs' cause being so clear and indisputable, an efficient remedy may be afforded within and pursuant to well-established .elementary principles of equity, with violating or ignoring any rule of law or of evidence, and without the arbitrary exercise of judicial authority. We have before us a plain case of a grievous, contemplated, and threatened wrong, imposing upon the court á plain duty, one which it should be eager to discharge, and not astute to evade, namely, to grant that measure of relief which the plaintiffs’ rights demand, and to withhold which, it seems to me, is purely and simply a denial of justice.

Many, but not all, the material facts, are mentioned in the prevailing opinion ; but no reference is made to the exact situation of the parties, nor to the leonine characted of the contract made by the defendants’ testator with the plaintiffs. Mr. Garry, desiring to retire from any active connection with the business owned by him, proposed to put it absolutely in the charge of his two clerks, the plaintiffs, for them to conduct without any participation by him; they to devote their whole time and to mortgage their future for his benefit; he to retain absolute ownership of the business; they to withdraw from it only such weekly sums as were equal to the wages theretofore paid them; they to advance every dollar of necessary cash capital,—that is to say, each to advance $4,000 (and the evidence shows that the indebtedness of the business never, during any period of its currency, was greater than between $5,000 and $8,000); he (Garry) to receive, from the profits of the business made for him by the labor and the capital of these plaintiffs, the sum of $151.000, with interest at six per cent.; and, when that sum was paid him, the plaintiffs were to acquire, as their reward, each a one-fifth interest in the business, Garry still retaining three-fifths of the whole. Those are facts in the case which should be made prominent. Garry was to secure to himself every dollar he had'in the business, real or imaginary, was to be the absolute owner, was to take no part in conducting it, to do no work, but to leave everything to the fidelity, the diligence and the business skill of his two clerks; and all that they had to look forward to, after Garry was satisfied in full, was the acquisition of a small fractional proprietorship in the business, which would give them a standing, and open to them, possibly, a business career. They were willing to enter into this contract in the hope and expectation referred to, and they were also willing to stipulate that Mr. Garry might, at any time before the full sum of $151,000 and interest at 6 per cent, was' paid to him, from profits to be earned by them, terminate the agreement, and resume possession of the business, by returning to them their capital. This they were willing to do, obviously, because they not only, trusted to the integrity, the sense of justice, and the gratitude of' Garry, but because it is patent that it could not be to his interest to put an end to a contract so immensely beneficial to himself, so' long as they faithfully carried out their part of it by paying to him, from profits, the whole value of his business, and leaving: him, when that was done, the lion’s share of what remained.

When the preliminaries of this contract had been settled, and' the parties met to execute a written>agreement, at the office of the-attorney who prepared it, the plaintiffs found that there had been-inserted therein a provision (that referred to in the opinion of the court), namely, that not only'should the contract be determinable at the pleasure of Mr. Garry, but also at the mere pleasure of his executors, administrators or assigns, upon a return of the capital contributed by the plaintiffs. It is stated in the opinion of the court that this provision was objected to by the plaintiffs. It was not only objected to, but, according to the testimony of Mr. Banning, one of the executors of Mr. Garry, it was protested against, by the plaintiffs. I do not read the testimony as the majority of the court 'have done. Mr. Banning distinctly swears there was a protest against signing with such provision. “Mr. Molohan [he says] made it before the reading was completed. That is my recollection. Mr. Molohan made a protest. Molohan said to Garry: ‘ You are liable to die. What would your-executors do? What position would it place us in if we would sign this? ’ ” Manifestly, they would not be guilty of the folly of committing themselves to this contract, and expending years, perhaps, of faithful labor, with the use of their money, only to find themselves thrown back upon the world at the volition or caprice of strangers, and just at a time, perhaps, when their contract would be upon the eve of fulfillment. There is no doubt that Mr. Garry recognized the reasonableness and the justice of this protest, and thereupon stated that he would make a codicil to his will directing his executors to conform to the agreement; that is, if they (the plaintiffs) conformed to the agreement, to continue the business until the amount was paid, and that the contract would be fulfilled. Thereupon the plaintiffs, as Mr. Banning says, stated that, “ with that understanding, they would sign it; ” and they did sign it, and thus they executed and delivered the contract, upon the distinct understanding and agreement that Garry would do as he promised. 'Their act in so signing and delivering was a consideration for the promise Garry made. There is nothing ambiguous or vague in this part of the transaction. It was a distinct stipulation between the parties that in one certain event or contingency, and only in that one event or contingency, should any limitation be put upon the right to rescind the contract. And this brings us to the consideration of the question as to the legal effect of this particular feature of the transaction. _ o

It would appear that the learned judge at special term admitted all the testimony respecting the protest of the plaintiffs, and the statement and promise made by Mr. Garry to overcome it. That testimony was all objected to, and, if the objections were valid and the testimony were inadmissible, it would be folly to base any judgment upon it. But, in my opinion, that testimony was entirely competent. It was not introduced for the purpose of varying or modifying a written contract between the parties, which was to contain or might have contained all the terms and conditions of all that was in negotiation prior to the execution of the written paper. It was merely a collateral agreement, respecting, 'it is true, a matter in one sense germane to the whole transaction, but actually something that was distinct and separate, and intended to be kept separate, from that which was to be comprehended in the main agreement. The case does not fall within the ruling in Eighmie v. Taylor, 98 N. Y. 288, and Thomas v. Scutt, 127 id. 133; 38 St. Rep. 692, and cognate cases, for the evidence does not affect a paper designed to signify and to execute the'terms of the whole contract agreed upon between the parties, and which was adequate for the purpose of embracing all that was agreed upon. This proof was not intended to import into a written contract a term, which should have been inserted therein, and the case differs toto ¿telo from those relied upon to exclude the testimony.

There are three elements, each one of radical difference: First. By specific agreement between the parties, the stipulation was not to be inserted in the main agreement, but was to be absolutely independent and collateral. Second. In the very nature of things, it could not have been inserted in the agreement, because it was something that was to be done by Mr. Garry by last will and testament or codicil thereto. It was to be done by an instrument to be executed by Mr. Garry alone, and which no one but himself could execute; and it was not contemplated in any way that any reference should be made in the written agreement then signed, to such a codicil. Third. It appears without dispute that Mr. Garry, in conformity with this collateral agreement, did actually execute a testamentary paper of the character he promised to execute as a condition of the plaintiffs’ signing and delivering the contract to him. So that the evidence of the collateral contract was complete. Its terms were definite, and what was intended by Mr. Garry as performance thereof was actually made. I think, therefore, it is clear from the circumstances which surrounded the execution of the agreement, and all the attending facts, and the positive testimony of Mr. Banning, that the matter with reference to the direction to be given to the ex-' eeutors in case Mr. Garry should die before full performance of the contract by the plaintiffs was a thing it was neither contemplated nor intended should go into the main agreement, but should be kept as a matter extrinsic and entirely independent of the terms of that agreement.^

If the foregoing views on this subject are correct, then it will not be dispute0d that it was incompetent for Mr. Garry to revoke or destroy the codicil.' While the provisions of that codicil are not as, broad nor as beneficial to the plaintiffs as their agreement justified them in expecting, yet, doubtless, it evinced Mr. Garry’s apprehension of what had been agreed to, and would be the measure of the plaintiff’s rights. The parol evidence is that Garry stated that his will would contain a direction to his executors to. conform to the agreement so long as the plaintiffs conformed to it. This is referred to in the opinion of the majority of the court, and it is suggested that there is no meaning of any definite character to be ascribed to these words. But Mr. Garry ascribed a meaning,, to them, and that is to be found at folio 169 of the case; and it is that, if the plaintiffs conform to the agreement, the business was. to be continued until the amount was paid (referring to_ the1 $151,000), and that the contract would be fulfilled. There is no. misunderstanding possible of this testimony. It comes from an executor of Mr. Garry’s will, a man who was present at the time the papers were executed and the collateral agreement was made and Garry perfectly understood that, in the event of his death, so long- as the plaintiffs performed their part of the contract, the business was to be continued.

Of course, equity will not undertake to enforce a contract indefinite and uncertain in its character; but what could be more definite and certain than this testimony of the executor of Mr. Garry’s own will, who was a witness to all that took place between the plaintiffs and Mr. Garry ? Mr. Garry’s own understanding of the matter appears from the codicil to his will dated May 24, 1892; and here it is impsrtant to observe that this codicil was executed just ten days after the main agreement was signed and delivered, and must have been for the purpose of carrying out the collateral contract, and of making that independant instrument which he promised to make as a condition of the plaintiffs’ signing the agreement of May 14, 1892. This codicil states that the testator wishes and desires the business established, etc., to be continued “ while the same can be conducted successfully and with profit to my estate; and I desire my said executors shall permit my friends -John Francis Mahar and Patrick Molohan, or any partner or partners I may have at my decease, to have the management and control of my said business as long as, in the discretion of my said executors, they manage the satne profitably.” Now, this, of oourse, is not as broad as the agreement testified to by Mr. Banning; and yet, at the same time, it shows that Mr. Garry’s understanding of the plaintiffs’ conforming to the agreement as testified to by Mr. Banning was so long as the same was managed profitably. This codicil clearly expresses the purpose and desire of the testator that the business shall be continued so long as it could be profitably done; and the discretion which is given to the executors is not the discretion to terminate at any time or under any circumstances, but the business is to be continued so long as it is successful, and produces profit for the estate,—that is to say, profit directly from the business. It is not a general discretion, as Mr. •Justice INGRAHAM, in his opinion, construes it to be. These •executors do not set up in their answer that the business has been managed unprofitably. They do not allege any want of fidelity on the part of the plaintiffs, or any dissatisfaction with their conduct of the business, which they, assuredly, could not have done in view of tne enormous returns of clear profit made to Mr. Garry in his lifetime, and to them since his death. They have therefore no reason or ground to ’complaint of the management, nor to exeroise a discretion adversely to the continuance of the business.

It seems to me, therefore, that the case should stand precisely as if the promised codicil were now in operation; and that the plaintiffs have the right to revoke it as a shield against the termination of the agreement by the executors; and that they have a right to come into a court of equity, arid say that they have performed their contract honestly and faithfully, and to the great profit and advantage of Mr. Garry and of his estate, and to seek the protection of the court from the cruel wrong which these executors are seeking to inflict upon them, under the color of teclmical _ rights, which Mr. Garry expressly contracted against, and which justice and equity demand should not be enforced.

I think that the judgment should be reversed, and, on the whole case, a judgment should be directed for the plaintiffs, granting an injunction restraining the defendants from interfering or molesting them in the conduct of the business so long as the same is_conducted profitably.


author: WILLIAMS, J.

text:
    Francis Maher et al., App'lts, v. Della Garry et al., Resp'ts.

      (Supreme Court, Appellate Division, First Department,

      Filed April 10, 1896.)
    Costs—Additional allowance.
    In view of the great hardship to the plaintiffs resulting from the judgment, it was held, in this case, that there should be no additional allowance granted.
    Appeal from a judgment awarding defendants an additional allowance.
    Frederick R. Kellogg, for app’lts; Samuel Untermyer, for resp’ts.
   WILLIAMS, J.

We have heard the from the judgment in this case at the present term, and have felt constrained to affirm such judgment. We have thus become familiar with all the facts, and, in view of the great hardship to the plaintiffs resulting from the judgment, we think there should be no additional allowance granted.

The order should therefore he reversed, but without costs of the appeal, and the motion should be denied, without costs.

All concur.


author: GAYNOR, J.

text:
    William Gordon, Pl'ff, v. William L. Strong et al., as Commissioners, etc., Def'ts.

      (Supreme Court, Kings Special Term,

      Filed March, 1896.)

    1. Bridqe commissioners—Contracts.
    The legislature has not the power to grant to a bridge company an exclusive franchise to build and maintain a bridge or bridges over the East river, or any section of it.
    2. Same.
    But it has the power to grant a franchise to build a bridge upon a line located and designated in the act itself, or within a given space or section of the river upon a line to be located and pre-empted by the company.
    8. Same.
    Chapter 789 of 1895, which provides for a commission to build a bridge from Brooklyn to New York, construe,d and powers of the commissioners-determined.

      4. Same.
    Court has no power to interfere with the exercise of discretion hy the commissioners, however unwise or extravagant it may seem to he, unless-the act is beyond their powers or actually fraudulent.
    Action for injunction.
   GAYNOR, J.

— By act chapter 101 of the Laws of 1892 the legislature made Frederick Uhlrnan and other individuals a body corporate, and gave away to such corporation a franchise (viz. a permission or right) to build two bridges across the Bast river from Brooklyn to Hew York. Instead of precisely locating the-line of the bridges, the act provided that the first bridge might be built anywhere “between a point at or near Broadway, in the city of Brooklyn, across the Bast river to a point or place between Delancey and Rivington streets in the city of Hew York;’’ and the-second one from anywhere between Bridge and Little streets in Brooklyn to anywhere between Jackson and Scannell streets in Hew York. Bach of these two spaces is wide enough for several bridges. The act required that the construction of the first bridge-should be begun within one year after the assent of the federal-government thereto, and of the second bridge within one year after the opening of the first to public use. The first one may be-called the “Williamsburgh Bridge,” and the second the “ Hudson Avenue Bridge,” for convenience of reference. The line of theWilliamsburgh bridge was actually selected and established, and the assent of the federal authorities to the plan of the said bridge-was obtained in Fehruary, 1893. Hothing was done within the prescribed year thereafter, or has been done since, in the actual work of construction of the first bridge, unless the purchase of a, small lot of ground in the line of the Brooklyn approach, and the setting therein of a cement foundation five feet deep and four and a-half feet square, in February, 1894, was a commencement of' such construction in good faith, and not a mere pretense upon, which to make a claim that the company complied with the requirement of the statute, and saved its charter from forfeiture. But inquiry into that subject is not necessary, as the charter could-be declared forfeited only in an action brought by the attorney-general of the state for that purpose. Such was the status of the company when the legislature by act chapter 789 of the Laws of 1895, provided for the appointment of a commission to build a bridge over the East river by the two cities jointly. The act required that the bridge should run “ from at or near the foot of Broadway in Brooklyn, “to at or near the foot of Grand street” in the city of Hew York. By section five of this act the commissioners were empowered to acquire by purchase the “charter and nil the powers and rights granted thereby of any corporation having a valid charter to construct such a bridge- as the said act authorized the commissioners to construct, provided the mayors of the two cities assented to such purchase. That the.commissioners could have selected a line for their bridge which would not encroach upon either of the said spaces within which the said company was- authorized to build its two bridges is not disputed, but for alleged reasons of expense and public accommodation they so located it that the Brooklyn end of it is against the approach to the company’s Williamsburgh bridge, and the ¡New "York end goes to a small extent over the north line of the said wide space within which the company was authorized to build its Hudson Avenue bridge. They'thereupon, with the assent of the two mayors, entered into an agreement with the company to purchase its entire franchise for its Williamsburgh bridge, but not its franchise to build the Hudson Avenue bridge, but only the right to encroach as aforesaid upon the space within the limits of which it was given the right to locate, but never did locate it Thus is left with the company its franchise for the'Hudson Avenue bridge. ¡Nor is it said lot of real estate and foundation, or any other property, included in the purchase. The money consideration is $200,000. In addition to this lai’ge sum, however, the agreement contains a provision the value of which, if it be valid, and mean's what it was obviously intended to accomplish, must be worth many millions of dollars. It is as follows :

“ It is also expressly understood and agreed between the parties aforesaid that the bridge to be constructed by the parties of the second part (the commissioners of the two cities) across the Bast river under and in pursuance of chapter 789 of the Laws of 1895 shall, among other features, contain the following': Space for two separate and independent railroad tracks for the use exclusively of elevated railroads, with gradients to be determined by the parties of the second part or their successors to be practicable ímd consistent with the motive power which shall be in use by such railroads at the time said bridge shall be completed, and that said bridge shall have suitable and ample terminal facilities for such railroads, which facilities need not, however, extend beyond the approaches of the bridge as the same shall be laid out and established by the parties of the second part.”

The plaintiff, a taxpayer of the city of Brooklyn, complains that the making of this agreement was an illegal, and also a fraudulent, official act, and that the carrying out of it would be a fraudulent waste of the public funds and estate, and prays that the commissioners be enjoined from carrying it out, and that it be annulled.

This case presents one of those instances, grown so common in this country, of the aggrandizement by law of a few at-the expense of all. Public franchises, the property of the people, instead of being used and controlled for the public welfare and economy, are allowed to be bonded and stocked and exploited for the amassing of vast unearned fortunes out of the people. The holders of such franchises are permitted to use and abuse them as-though the public had no rights in them. To meet the case of dividends or gains upon actual investments under them growing larger, owing to the value of the franchises themselves, than the ¡public should in justice and good conscience pay, fictitious and fraudulent paper shares are issued upon them, in order to continue the unjust exactions. Surface and elevated street railroads, which would easily pay the liberal dividends which no one would begrudge upon their actual cost, not to say twice their cost, at a fare of two or three cents, are permitted to thus increase their paper shares, and their bonds also, indefinitely, instead of reducing the fares; thereby actually levying a tribute upon the public means of and through public franchises given away to them and held by them for public purposes, instead of paying the public for the use of them, either in a fixed rent, or in reduced fares. 'The present case exhibits only another way of getting unearned money out of the public by means of public franchises. It presents the all too common instance of government giving away a valuable franchise, the property of all the people, with one hand, and buying it back out of the people’s money with the other hand. Such an order of things is not government for the weal of all, but a form of socialism for the benefit of a few at the expense of the many, from which far more is to be feared to the permanency of government than from the perverse few who profess, or are said to profess, opposition to all government. The just discontent and demoralization of honest effort and industry, and the danger to the permanency of social order, caused by such a state of things; is a legitimate subject of argument before a court, and is entitled to have its legitimate influence; though a court is not permitted to be controlled by such considerations, however strongly urged, against what is the law, but must decide according to law. It is grave subject for statesmen, and those having to do with originating policies and the making of the laws.

The said statute under which the commissioners act gives them the power and discretion to purchase the franchise of the bridge company, but in terms only “ so far as the same relates to the bridge authorized” thereby. This means that the commissioners may purchase such franchise or right as the company has, but only if, in their judgment and discretion, necessary to the location of their bridge. The commissioners were under no necessity to encroach upon the bridge company. They were free to say to it: We want nothing from you. There is plenty of room for bridges. You go and build yours (if you ever intended to), and we will build ours.” There is room for many bridges across the East river, and the act does not prevent the company from building it-s bridges, though it may have been chiefly intended and fashioned to enable them to sell out. It provides for the taking of the company’s sights only to the extent that they may be found in the way of the line to be selected by the commissioners. Under recent decisions this court has no power to interfere with the exercise of such discretion by the commissioners, however unwise or extravagant it may seem to be, unless the act of the commissioners he beyond their powers, or actually fraudulent. Talcott v. City of Buffalo, 125 N. Y. 280; 34 St. Rep. 871; Adamson v. Nassau E. Railroad Co., 89 Hun, 261; 68 St. Rep. 851. They are given ithe power to locate their bridge upon the line selected by the #?ompany for its said first bridge, if they see fit, instead or upon the ample free space open to them, and upon which there is room for several bridges. It may well be that the people of the two cities would prefer to incur an extra expense of millions of dollars in building a bridge that would not trench upon the franchises of the said company, rather than submit to the payment of any amount of their money, however small, to buy back a mere permission to build a bridge, which their representatives gave away in 1892. But the complete answer to that in law is that the legislature has vested these commissioners with the power and discretion to locate the bridge of the two cities upon the said line of the company’s proposed bridge, if they see fit, and then to purchase the company's franchise out of the public funds; and there this court has to stand. And the price or consideration to be given is also left to their discretion, and this court may not gainsay them in that, either, unless that they have agreed uppn is so large and improvident as to be a fraud in itself.

As lias been seen, the company had actually selected a line for its Williamsburgh bridge, and therefore had it by possession; and the commissioners, having, as has been seen, located the line of their bridge partly on it, had the right to purchase the company’s franchise to it. But the commissioners have gone further than to purchase the franchise of the company to build that bridge. As is expressed in the. said agreement which they have entered into, they have also purchased the right to have the New York end of their bridge go to some extent over the north line of the wide space within which the company by its said act of incorporation is given the right to locate its Hudson Avenue bridge. But it never has located it, and therefore it has no exclusive right to any particular line or part of said space. Having, therefore, no exclusive right there against the commissioners, it had nothing there which the commissioners needed, and' could therefore use the public funds to buy; and to so use such1 funds would be an illegal waste thereof. The legislature gave the company no specified or located line, but only the right to locate its line anywhere within such designated space. Not having located it, it has no exclusive right. Our state constitution expressly prohibits the legislature from “granting to any private corporation, association, or individual any exclusive privilege, immunity, or franchise whatever.” Article 3, § 18. The legislature had not the power grant to the said company an exclusive franchise to build and maintain a bridge or bridges over the Bast river, or any section of if. It had the power to grant to it a franchise to-build a bridge upon a line located and designated in the act itself, or within a given space or section of the river upon a line to be located and pre-empted by the company. The line, when located in either way, would be exclusive, it is true, but not because the# legislature did or could make it so, but only because it would be: physically exclusive, in that two bodies are unable to occupy the same space at the same time. If, for instance, the legislature should allow two companies to establish ferries, without designa-1 ting the exact lines, the company which first legally located a line would have it exclusively; and the same is true of railroad com-panics in designating their lines by the filing of maps under the statute. In re Union Ferry Co., 93 N. Y. 139 ; Rochester, H. & L. R. Co. v. New York, L. E. & W. R. Co., 110 N. Y. 128; 16 St. Rep. 838; Suburban Rapid-Transit Co. v. City of New York, 128 N. Y. 510; 40 St. Rep. 498. The bridge company having, therefore, established no right exclusive of the commissioners in the territory within the lines of which it was given the right to locate the Hudson Avenue bridge, the portion of the $200,000 which is the consideration for the purchase of a right in that territory is an expenditure for nothing, and hence an illegal waste of the public funds; and, as the agreement does not disclose what that portion is, so that its payment can be restrained, the agreement as a whole must be annulled.

In addition to this, the particular clause above cited of the agreement of purchase involves the case in much difficulty. I refer to the clause in which the commissioners agree with the company that the completed bridge shall contain “space for two separate and independent railroad tracks, for the use exclusively of elevated railroads.” Why was this put in the agreement? What does it mean? For whose benefit is it intended? Who is to come forward hereafter and assert rights under it, and what is to be its interpretation ? I have tried to discover and penetrate the design of the parties in putting this clause in the agreement, for surely their astute intelligence did not combine to put it there for nothing. Upon the argument it seemed to me that it was not binding, but useless and harmless, as was claimed, for I could not see that the bridge company had, or could have in the future, any interest in it, and therefore it could never have any standing in court to enforce it; nor could I see that any elevated railroad company could enforce it, no such company being a party to the agreement or in privity with it. It is true that the individuals who control the bridge company also control the only elevated railroad company which approaches the site of the proposed bridge, as was freely admitted upon the argument; but that fact does not in law make such railroad company a privy to the said agreement. But upon a close inspection of the said act incorporating the bridge company, I find that said company is given the power to merge or consolidate with elevated railroad corporations, and thus participate in the ownership and operation of elevated railroads. Laws 1892, c. 101, § 8. I also find in the said act a provision that nothing therein contained shall be construed “as exempting from taxation the structure of any elevated railroad owned, controlled, managed, or operated” by the bridge company, which implies that it is empowered to become the owner or lessee of elevated railroads. Section 20. I also find that the bridge company’s stock may be bought and held by elevated railroad companies. Section 7» These provisions reveal the design of the clause of the agreement under consideration. That the bridge company is, or is capable of hereafter being; associated with elevated railroad companies, or in control of elevated railroads, constitutes an interest in the said company in the said clause sufficient to make it live and binding, instead of a mere waste of words, incapable of binding the commissioners, or those who shall have control of the completed bridge. This clause must, therefore, be interpreted and recognized as an agreement by the commissioners that they will provide space for two independent railroad tracks for the use exclusively of the elevated roads owned and controlled, or to be owned and controlled, by the bridge company, or in which it has or may have an interest. It is noticeable that there is no requirement in this clause that elevated railroads shall pay anything for the space which it is thus agreed shall be provided for their exclusive use. If it was meant that they should pay, would it not be so provided? The agreement is complete in itself, the consideration for the purchase being the payment of $200,000, and the furnishing of the space for the exclusive use of elevated railroads. It cannot be understood from this agreement that such space was to be paid for by the bridge company or its elevated railroads, for it is not being purchased or hired by this agreement; on the contrary, it is being given as a consideration'for the sale of the franchise. If therefore all comes to this, viz.: That whereas those in control of the bridge company obtained from the legislature a franchise to build a bridge (intending chiefly to make it a railroad bridge on account of their control of elevated railroads), they are now by this agreement to be paid $200,000 of the public funds for not building the bridge, and, in addition, after a bridge shall be built out of the public funds, they are to be given the exclusive use of the space upon it for elevated railroad tracks. They build no bridge, but they are to have a railroad bridge worth many millions, and also $200,000, at the public expense. To say that this total consideration amounts to twenty millions of dollars would be within bounds. I recognize that the statute has vested the commissioners with a large discretion, but I cannot believe that this scheme is lawful or 'tolerable. If it is to be held such, it should be by a greater responsibility than that of a single judge.

This same clause also provides that the completed bridge “shall have suitable and ample terminal facilities for such railroads, which facilities need not, however, extend beyond the approaches of the bridge.” This adroit provision plainly is that the commissioners are, at public expense, to furnish these elevated railroads with terminal facilities inside of and upon the bridge approaches. I cannot bring myself to disregard this, either, by yielding to the'suggestion that it has no binding force. Did the able and astute parties to the agreement draw it with precision and care to draw no one and mean nothing? It must also be noticed that this provision makes,clear the prior provision in respect of the railroad space upon the bridge, for, if one is held to secure terminal stations for railroads at public expense, and without charge to them, it cannot be said that the other in like manner does not "secure such bridge space. But if this clause be really not binding upon the commissioners, it was nevertheless an illegal breach of duty upon their part to put it in the agreement; for it is beyond doubt, to any one of, discernment, that the design is at least to use it in the future as a basis for a claim that elevated railroads may be run over the bridge and have such terminal stations, without rent or charge, the outcome of which would almost certainly be to the public loss, either by a full yielding of their rights, or a compromise. To furnish color or basis for such a claim and controversy (as this clause does) is in itself a breach of official trust by the commissioners. It is more of a breach of duty in public agents than it would be in a private agent. If this clause be allowed to stand in this agreement, time will show that it was not purposeless. It is fraught with the intention to get for nothing at the public expense rignts and property of immense value. The said commissioners are to build the bridge; but are not to have the management of the completed bridge. On the contrary, the act provides that it shall be turned over to the trustees of the old bridge now in operation, viz. the New York and Brooklyn Bridge. But in the section of the act which enables the commissioners to buy the franchise of the bridge company, is the following: '

“But nothing in this act contained shall prevent said commissioners m their discretion from contracting with any corporation to operate a railroad across said bridge if said commissioners shall determine it to be in the public interest.” Laws 1895, c. 789, §5.

. . This is a strange proviso. Inasmuch as the act nowhere, in word or inference, pretends to confer any such power upon the commissioners, this proviso was obviously interpolated with the view of conferring it upon them. That they should do so is contrary to the plain scheme of the act, which was to make them only the builders of the bridge. But it is not necessary to decide whether this proviso enabled them to do so, for the particular clause of the agreement which has been discussed is not a contract for the op eration of a railroad across the bridge. Such a contract would have to prescribe the terms under which the railroad would be operated, namely, the accommodation to be furnished, the rate of fare, the rent to be paid, and the like; so that, if we refer the said clause to the authority of this proviso, it is notin compliance with it, and is therefore illegal. Its improvidence alone is sufficient to avoid it. The said bridge company’s act provides for so-called “elevated railroad approaches” to the bridge extending across New York City to the Hudson river. The plain object was to enable the company to build elevated railroads in New York City, disguised under the name of the bridge approaches. This is fully revealed by the accompanying act (Laws 1892, c. 102), passed the same day, providing for the building of these so-called “approaches” by the bridge company under the rapid-transit railroad act of 1891, for its passage was wholly unnecessary, except in the view that the bridge act was violative of the prohibition of the state constitution against any private or local bill granting the right to lay railroads. Article 8, § 18. Much was said upon the argument of the work done and expense incurred by the bridge company in trying to get the local consents for the building of such elevated railroads in New York City. It is enough to say that this was not work and expense in the construction of the bridge, but in the said railroad scheme, which, if carried out, would have been of equal value, no matter who built the bridge. These so-called “railroad approaches” from the Hud-son river and other distant points were in no sense parts of the bridge. That money was spent in them is no reason whatever that it should be reimbursed out of the public treasury.

Let an injunction be granted to continue until the trial of the action, or until the agreement of purchase be modified so that the purchase price will be for the franchise of the Williamsburgh bridge only, and by striking out the clause concerning the elevated railroads. The claim that the said clause is nugatory, and binds no one, will, of course, insure the striking out of that clause at once, for any opposition would be inconsistent with the good faith of such claim.


author: RUMSEY, J.

text:
    William H. Dieffenbach, Resp't, v. New York, Lake Erie & Western Railroad Company, App'lt.

      (Supreme Court, Appellate Division, First Department,

      Filed May 1, 1896.)

    1. Damages—Personal injuries.
    In an action for personal injuries, the plaintiff can recover only for such permanent injuries as, in the. ordinary course of nature, are reasonably certain to ensue.
    2. Same.
    In such case, he is entitled to such a sum as will fully compensate him for his suffering, not only from the lime of the accident to the time of the trial, but from that time on until his recovery shall be completed.
    S. Same.
    The items of damage, in such case, are the bodily injury sustained, the pain suffered, the effect on the health of the sufferer, according to its degree and its probable duration, the expenses incidental to attempts to effect a cure, or to lessen the injury, pecuniary loss sustained through inability to attend to a business, as to which again the injury may be temporary or permanent. "" "w‘
    4. SameL1
    Where jury has taken all these elements of damage into consideration and awarded what they deem a fair and reasonable compensation under the circumstances of the case, the court will not, unless under very exceptional circumstances, disturb their verdict.
    Appeal from a judgment for plaintiff, from an order denying a new trial.
    Edward R. Green, for app’lt; F. Dieffenback, Jr., for resp’t.
   RUMSEY, J.

On the morning of the 16th day of March, 1893, the plaintiff took passage on a train on the Erie Railroad, from Binghamton to New York. While his train stood on the track at Laekawaxen, and the plaintiff was lying in his berth in the sleeping ear, the following train crashed into the car in which the plaintiff lay, tore it to pieces, and, as a result of the collision, the plaintiff was very seriously injured. He received many bruises about his head and body, and was removed from the wreck in an unconscious condition, and, after being kept a short time at the place where, the accident occured, was taken to his home, in the city of 3STew York. He brings this action to recover damages for the injuries which he received at that accident. The action was tried in January, 1896, and the jury rendered a verdict for the plaintiff in the sum of $35,000. After the verdict had been rendered the defendant moved for a new trial upon the ground, among others, that the damages were excessive, and the court made an order granting a new trial unless the plaintiff stipulated that the damages be reduced to $25,000, and providing that if such a stipulation should be filed the motion should be denied. The plaintiff acceded to the modification of the verdict, and the judgment was entered against the defendant for the sum of $25,000 damages, besides the costs of the action. From that judgment, and the order denying the new trial, the defendant takes this appeal.

Two or three exceptions were taken upon the trial of the action, but they are of no particular importance, and the defendant makes no point of them on this appeal. It bases its appeal solely upon the ground that the damages were excessive. That the accident occurred, as alleged by the plaintiff, through the negligence of the defendant, and that the defendant is liable to respond to the plaintiff in whatever sum shall be necessary to compensate him for his injuries, cannot be denied, and is not disputed. It appeared from the evidence that the injuries which were received were very severe. He had bruises and a wound in the back, some of the large muscles being torn from their attachment to the spine. His right arm and five of his ribs were broken, and there were serious cuts upon his legs. He was kept in the hospital for six days, and was kept in bed until about the middle of June after the accident. At the end of June he was able to go out somewhat, and hobble about with a crutch. It was practically a year before he was able to use his arm, and at the time of the trial, in January, 1896, he was still .suffering severely from the injuries which he had sustained almost three years before. When the accident occured, on the 16th of March, 1893, the plaintiff was twenty-eight years old. He was .strong, robust, healthy, and, so far as appears from the testimony, in perfect physical condition. He was employed as a traveling salesman, and was earning at the time of the accident about $3,600 a year, in addition to his expenses, which were paid by the firm who employed him. It appeared from the testimony that, from the time of the accident until the time of the trial, he had been utterly unable to do any work, or earn any salary whatever. His •doctor’s bills, up to the time of the trial, had amounted to upward of $1,000. These actual money losses which he had incurred up to the time of the trial, in January, 1896, were about $9,100; and the jury might properly have given to the plaintiff this sum of money to recompensate him for salary that he had lost from the time of the accident to the time of the trial, and his expenses, without taking into consideration any compensation for the suffering and pain which he had endured during all those years. In Addition to that, there was considerable evidence bearing upon the •question of the permanency of the plaintiff’s injuries. That he had not recovered from his injuries at the time o£ the trial was apparent from the evidence,- and was conceded upon all hands. The precise condition in which he then was, and whether or not that condition was solely the physical result of his injuries, or whether it was, to some extent, merely nervous and hysterical, caused by the fact that his nervous system had been so shaken as to induce him to imagine that he suffered more than he in fact did, was somewhat in dispute. The jury would have been authorized to find from the evidence that his condition, whatever it was, was purely the physical result of his injuries. But even if that were not so, and he was suffering from nervousness brought on as. the necessary result of that accident, which caused him to exaggerate the actual physical pains and disabilities under which he labored, is a matter of no particular importance. Dr. Hamilton, who suggested that such might be the case, said that in his judgment the plaintiff was not shamming, but that he really believed his sufferings were precisely what he said they were, and that belief was caused by his nervous condition, producing hysteria which led him to exaggerate the actual troubles from which he suffered. As a matter of fact, it could make very little difference whether the pains which the plaintiff suffered were actually existing to the extent that he thought, or whether his nervous system was so affected that he believed them to exist to a greater extent than they actually did, ana suffered accordingly, if the nervous condition was caused by the accident which produced the pains. In any case the plaintiff’s condition was the direct result of the injuries which he received, and, so long as those injuries affected the plaintiff, the defendant was liable for their results. If the jury were satisfied that the plaintiff in good faith actually suffered as he said that he did, although that suffering may have been, to some extent, the result of nervousness, and not the necessary result of actual physical pain, so that upon the undisputed evidence the jury must have found, not only that the plaintiff had'not. recovered from his injuries, and was not able to work, to the time of this trial, but that some period of time must necessarily elapse before such recovery come about, even if it ever take place, there could be no doubt of the liability of the defendant for that condition, so long as it existed.

There was evidence from which the jury might have fou-nd that the ultimate recovery would take at least five years. Dr. Wilcox, who attended the plaintiff from shortly after the accident, testified that his condition was reasonably certain to continue for a long time. ' He said that from the condition in which the plaintiff was at the time of the trial, nearly three years after the accident, it would be several years before he was reasonably better. The precise time, he said, it would be utterly impossible to fix. He would not be much-better for three years, and probably it would be at least five years before he would be recovered. The witness stated that the plaintiff had been improving slowly, but that his improvement had not been steady or progressive. His testimony was corroborated by that of Dr. King, who thought that there had been no steady and progressive improvement. He said that he ¡believed that in the course of time the plaintiff would regain his health to such an extent as to be able to carry on some light business, which, in -his judgment, would require at least two years, and perhaps five. On the other hand, Dr. Hamilton, who was sworn as an expert on behalf of the defendant, and who had examined the plaintiff, testified to the condition in which he found him, conceding that at the time of the examination, and at the time of the trial as well, the plaintiff was still suffering, to a greater or less extent, from the effects of the injury. Dr. Hamilton said that in his judgment the symptoms of the plaintiff, and his apparent suffering, resultea to some extent from the pendency of the action, and that ne believed that as soon as the action was disposed of the plaintiff would begin to recover rapidly. But he testified that it would be utterly impossible for him to say. with any accuracy when complete recovery would take place, although he thought it might come about in six months or a year. This was the general trend of the testimony upon the subject of the permanent injury which the plaintiff had suffered. Ho exception was taken to the way in which that question was submitted to the jury, and it was properly stated m the charge of the court.

The rule is well settled that in cases of this kind the plaintiff can only be allowed to recover for such permanent injuries as, in the ordinary course of nature, are reasonably certain to ensue. Strohm v. Railroad Co., 96 N. Y. 305. Upon that subject the expert witnesses may state what, in their judgment, is reasonably certain to be the future course of the plaintiff’s disability ; taking into consideration the nature of the injury, the extent of his recovery at the time of the trial, the rapidity or slowness of his recovery, the constitution of the man himself, and all those other conditions upon which a judgment of a physician is ordinarily based. That testimony, in connection with the physical condition of the plaintiff, is to be considered by the jury ; and it will be for them to say, ultimately, whether a permanent disability is reasonably certain to ensue, and, if it is not so, then how long it is probable that the plaintiff will suffer from the injuries. When they have concluded upon that subject, the question of the amount of damages necessary to compensate him for his future suffering is entirely one for their decision. In this case the jury might have found that, while a permanent recovery was probable, it would take several years, at least, before the plaintiff was able to go about his ordinary avocations, and that during all that time he would be unable to earn any money, would be put to expense for doctor’s bills, and would be compelled to suffer more or less pain as the result of the injuries which had been inflicted upon him. They might have found, too, that even after that time, while he 'would recover so far as to suffer very little pain, and be able to do some light work, he would never regain his former robust state of health, or be the man he was before. If they came to the conclusion that it would be two years before the plaintiff would be able to do any work, the actual pecuniary, loss which he would suffer during that time, by his inability to earn a salary which he had been receiving before the accident, would be $7,200. In addition to that would be the expense of doctor’s bills, the amount of which, of course, would be entirely uncertain. Even conceding, therefore, that the plaintiff would be able to go to work in two years from the time of the trial, his actual money loss would be over §16,000 in addition to the doctor’s bills which he would be required to pay from the trial on until his recovery. In addition to that, it would have been proper for the jury to add damages for the diminution in the plaintiff’s earning capacity which, it was fair to infer from the evidence, might exist after the immediate results of the accident had passed away. Besides that, it was clear that the suffering of the plaintiff had been very great. While he was not entitled to exemplary damages in the case, yet he was entitled to such a sum as would fully compensate him for those sufferings, not only from the time of the accident to the time of the trial, but from that time on until his recovery should be completed. Such damages were entirely within the discretion of the jury. They fixed the whole amount which was necessary to compensate the plaintiff for his injuries at §35,000. That sum was reduced by the trial judge, in the exercise of a wise discretion, to $25,000. We do not think, upon the case presented here, that the verdict, as reduced, was at all excessive. The considerations which apply in such cases are laid down in the case of Brown v. Foster, 1 App. Div. 578; 37 N. Y. Supp. 502. These are the bodily injuries sustained; the pain suffered; the effect on the health of the sufferer, according to its degree and its probable duration ; the expenses incidental to attempts to effect a cure, or to lessen the injury; the pecuniary loss sustained through inability to attend to a business, as to which again the injury may be tern-' porary or permanent. If they have taken all these elements of damage into consideration, and have awarded what they deem a fair and reasonable compensation under the circumstances of the case, a court ought not, unless under very exceptional circumstances, to disturb their verdict. If the jury applied those considerations, they might well have found that $25,000 was no more than sufficient to compensate the plaintiff for his injuries, if, indeed, the greater sum at which they fixed the verdict themselves was not proper.

The judgment and order should be affirmed, with costs.

All concur.