text:
    Lewis W. Hudson, Adm’r, Resp’t, v. The Rome, Watertown & Ogdensburg Railroad Co., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed October 8, 1893.)

    Master and servant—Railroad—Negligence.
    Plaintiff’s intestate, a locomotive fireman on defendant’s railroad was killed by the collapse of the crown sheet of the engine on which he was working. On the trial no serious question was raised as to the intestate’s freedom from contributory negligence. The main question litigated was as to defendant’s negligence, plaintiff's position being that the crown sheet had been burned prior to the trip on which the accident occurred, while defendant’s position, was that it was not burned until the time of its collapse. Held, that the question whether the engine was in a defective condition or not when it entered upon the trip on which intestate was killed, by reason of defendant’s fault or negligence, was a question of fact for the jury.
    Appeal from the judgment and order.
    Harry L. Hudson was a fireman in the employ of the defendant on the 8th day of October, 1890, and was killed by the collapse of the crown sheet of a boiler of a locomotive engine, known as No. 103, at Mexico. One George H. Grower was the engineer, and they were ordered on the 8th of October, about 1.45 P. M., to take engine No. 103 from the round house in the city of Water-town for the purpose of drawing an extra freight train to the city of Oswego on the defendant’s road. Grower had not run the engine before that time. When they took possession of the engine there was a fire in her and she had a pressure of about 140 to 150 pounds of steam. She was a large engine, with four drive-wheels on each side. They took water at the water column in Water-town and left there with the tank full. They again took water at Pierrepont Manor and at Richland. When they reached Mexico the engine stopped at the water column, and Hudson, the deceased, commenced to take water in the tank. Grower testifies: “ She was then getting a third gauge of water; she had then two full gauges, and the injector was working at the time; I left the injector going; I then got down out of the cab and went into the depot to get orders; as soon as I went into the depot I heard this explosion, although there was not much of it to hear; I ran out of the door, and when I came out I saw a cloud of steam, and I went down to the engine; I saw Hudson, he was back about one

      car length from the engine; * * * he was badly burned; I-picked him up and carried him to the station; he was taken from there to the hospital in Oswego; 1 saw him the next morning; he was still alive, and I saw his remains at the undertaker’s rooms at. Oswego; that was the next day, October 9th; * * * when I last saw Hudson before the accident he was taking water from the tank; I examined the engine after the explosion; I found the crown sheet reversed; originally it was oval; there was not a break in the crown sheet; it was just reversed; the crown sheet dropped into the fire-box and the stay bolts pulled out; during the time I had charge of the engine on October 8, 1890, the water did not get so low in the boiler at any time that it did not cover the crown sheet; from the time I left the Watertown yard until the explosion I had water enough in the boiler to cover the crown sheet all the time. We reached Mexico about 6.45 P. M.(; when I left the engine to go to the depot at Mexico, there was a brakeman on the engine with Hudson, but I can’t remember his name; it was the duty of the fireman to take water into the tank.” The engine was left in Watertown, at the round house, where she was coaled and had her fire dumped. How long she was there is not made very certain by the evidence. While she was there she was under the control of Batchelder, who is the engine dispatcher and had charge of the round house at Watertown. Batchelder says: “There was no inspeótion, except that of the engineer and myself when I was around there; I used to inspect them myself when I was there and when I was absent, the only inspection made was by the engineer; the engineers have orders to inspect their engines and make reports every trip; if the engineer came in with an engine and didn’t report anything the matter to me and I was not around, the engine would not be inspected by any person; I would make an inspection of the engine generally; not necessarily of her boilers; I generally looked around the engine; I have always made it a practice when I would go around an engine to inspect it, to see if there was anything out of order.” There was evidence given to the effect that burning or scorching of the steel crown sheet would cause'the crown sheet to leak into the fire-box around the stay bolts. There was evidence given tending to show a leakage. Shepard, the hostler, at the round house, testifies that he saw engine 103 on the 8th of October and that he cleaned her fires and had her coaled up; and he testifies “ I don’t recollect that it is a fact that I saw her leak before she went out that day; I don’t remember as I did ; my best recollection to-day is that I did not; I cannot remember whether she leaked before or after the accident; I know she did leak ; whether it was before or after I don’t just remember ; I did not see her after the accident until after she came back from the shop; I can’t say how long it was; but it was after she had a new crown sheet; I say she either leaked before or after there was a new crown sheet put in her, and I don’t remember which ; I will not swear that she did not leak before the accident; I don’t know how many days I have had her in charge; * 'x" I have seen her leak quite a number of times; * * I could not say whether it was before or after the accident; yes, I saw her leak; I looked at her crown sheet: but I can’t say whether it was before or after the accident; I didn’t say anything to Batchelder about her being scorched or heated ; I said nothing except about her leaking ; the leaking was in the right hand back corner of the fire-box; not under her stay bolts; it is where the crown sheet is connected on to the side sheet; it was caulked up quite a number of times; I think Gates did the caulking at Watertown; I don’t know when; Gates is the boiler maker and he is here in the court room; * * the leaking was done where the crown sheet connects on to the side sheet; it was on the edge where the crown sheet connects on to the side in the right hand back corner, upper corner.” There was evidence tending to show that a hot fire generating steam of 150 pounds would have a tendency to close any leaks that might have been in her crown sheet; and evidence was also given tending to show that if she leaked only a little it would not be discovered unless some one looked up at the top crown sheet through the furnace door.

      Muffin, Griffin & Walker, for app’lt; John N. Caslisle, for resp’t.
   Hardin, P. J.

Upon the trial no serious question was made as to the intestate’s freedom from contributory negligence, nor do we understand any question is made in the argument before us. That question was properly submitted to the jury and we must assume that their verdict finds that the deceased was free from contributory negligence, upon evidence sufficient to establish that fact.

(2) The main question litigated at the trial and pressed upon us in the argument relates to the defendant’s alleged negligence. Plaintiff’s position at the trial was that the accident occurred by reason of the collapse of the crown sheet of the engine and that it had been burned prior to the occasion when the deceased entered upon it for the trip when his life was lost. According to the testimony of Grower there were two full gauges, at least, of water in her, and that from the time he took charge of her until she collapsed, the crown sheet was covered with water all the time. Shepard, the hostler, who had charge of her while she was in the yard at Watertown, testified that he kept water in her boiler while she was there,, and from this evidence it is insisted that the crown sheet must have been burned before Shepard took charge of her, and that she was in that burned or defective condition while she was in the yards. There was some evidence tending to show that the top of the crown sheet had a bluish cast on the under side which extended along her length -and could have been discovered upon careful inspection had for that purpose. Defendant gave considerable evidence of the condition of the crown sheet after the accident, and the evidence tended to show that the engine with its crown sheet burned to the extent of this one could not be made to run at all, and that one with the crown sheet slightly scorched might be made to work for a short time, and that when the sheet is scorched the soot leaves the fireside of the sheet, and that such was the condition of the sheet just after the accident; and that the scorched area was some thirty-two inches in width from the front of the firebox and extended the whole length of the sheet gradually diminishing until at the back end of the sheet the scorched area was only sixteen inches in width. When the plaintiff rested the defendant moved for a non-suit, which was denied, and when the evidence was closed the defendant again moved for a non-suit, and an exception was taken on each occasion, the court holding that the question relating to the defendant’s negligence was one of fact for the jury. The defendant contends that the exceptions present error, and that the evidence clearly indicated that the crown sheet was burned at the time of its collapse and not at a prior time, and that, therefore, the verdict is against the evidence. We are of the opinion, however, that whether the engine was in a defective condition or not at the time when it was placed in the hands of Grower and the deceased by reason of the fault or negligence of the defendant was a question of fact which was property submitted to the jury.

The charge was very elaborate, carefully presenting the evidence relating to the question of the defendant’s negligence to the jury; and the judge repeated the question for the jury’s determination in several different expressions in commenting upon the evidence. He said: “ But I leave it, as I have left it, for the jury to say whether the boiler was in such a-condition when it left the Watertown yard as that the failure of the defendant to discover it, was negligence; that is, whether in the exercise of ordinary, reasonable care they ought to have discovered it.” Again he says: “ I cannot say what the jury would have a right to find the condition of the engine was when it left Watertown. I simply leave it to the jury to say what its condition was. It is not for me to say. When they have determined what its condition was, I leave it to them, as a question of fact, to say whether the defendant, in just the condition it was in, was guilty of negligence in not having discovered it before it left the Watertown yard; I will say that their duty was to exercise reasonable care in discovering defects and nothing more; they were not under obligation to make any very extensive inspection of it unless their attention was called to it They were to use reasonable care in discovering defects, and if,-by the exercise of reasonable care they ought to have discovered it, then they were guilty of negligence in not discovering it, and sending it out on the road in such a condition.” We think the rulings and charge of the trial judge were as favorable to the defendant as it was entitled to, and that the verdict is supported by the evidence. Buck v. Webb, 58 Hun, 188 ; 33 St. Rep., 824; Stevenson v. Jewett, 16 Hun, 210; Northern Pacific Railroad Co. v. Herbert, 116 U. S., 642. It has been repeatedly held that where the question of negligence is presented on conflicting evidence, and where different inferences may be drawn by the jury from such evidence, the trial court must submit the question to the jury. Kain v. Smith, 89 N. Y., 376; Bailey v. Rome, Watertown & Ogdensburgh Railroad Co., 139 N. Y., 302; 54 St. Rep., 550.

In the case just cited the Court said : “ The evidence of the negligence of the defendant is not direct and positive. But this is an infirmity which attends the investigation of facts in courts of justice in very many eases; * * * we are unwilling to say in this case that there was no evidence from which a just inference might not be drawn by the jury, that the defective condition of the brake existed when the car left Norwood, and that there was a negligent failure to discover it at that point,” We think the principle announced in the opinion which we have just quoted is applicible to the facts of the case now presented at bar. Criticism is made by the learned counsel for the appellant in regard to the testimony of Grower, on certain essential features of the casa That criticism may be answered by a remark of O’Brien, J., in Hastings v. B. L. Ins. Co., 138 N. Y., 479 ; 53 St. Rep., 63, which was as follows: “ However improbable the testimony of a witness may appear, who testifies to a fact not in itself impossible in the ordinary course of events, the credibility, force and effect of such testimony is for the jury.” In the argument submitted by the learned counsel for the appellant to us it is not claimed that any error was committed in the course of the charge or in dealing with the requests, which were numerous, following the body of the charge. We have discovered no error in the progress of the trial warranting us in overturning the verdict of the jury

Judgment and order affirmed, with costs.

Martin and Merwin, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Charles F. Dougherty, Pl’ff, v. The Trustees of the Village of Horseheads, Def't.

      (Supreme Court, General Term, Fourth Department,

      Filed December 3, 1893.)

    1. Village—Authority over streets.
    The charter of an incorporated village conferred upon its trustees power to make such general ordinances and regulations as they deem proper and expedient for the good government and health of the village; to prevent the encumbering of the streets, etc.; the street commissioner shall have the general supervision of the streets and act under the direction of the trustees; the trustees shall have power to prevent the incumbering of the streets in any manner. Held, that defendant was clothed with power to regulate its streets, and was charged with the duty of keeping the same in a reasonable condition for the use of the public.
    S. Same—Negligence.
    In an action against such village for personal injuries caused by the cutter in which plaintiff was riding striking against a large stone within the street, overturning and throwing plaintiff out, it appeared that the stone was placed in front of a tree, for its protection, five or six inches from the beaten path; that it was placed in the position by a person acting in behalf of the street commissioner; that it had remained there some time before the accident, and it such time was covered with snow. Held, that whether the plaintiff was free from contributory negligence, and whether the stone was an incumbrance in the street and unsafe, and the defendant guilty of negligence, were questions for the jury, and that a non-suit was improperly granted.

      Motion by the plaintiff for a new trial upon exceptions, under § 1000 of -the Code, after a trial at the Chemung circuit, where the plaintiff was nonsuited, and an order made that the exceptions taken by the plaintiff be heard in the first instance at the general term. Plaintiff received injuries by the overturning of a cutter in which he was riding while passing from the hotel barn to the wagon way of Main street of defendant’s village.

      Reynolds, Stanchfield & Collin, for pl’ff; Dailey & Bentley, for def’t
   _Hardin,

P. J.—Defendant’s charter was amended by chapter 486 of the Laws of 1855. Laws of 1855, page 875. Section 19 of that act confers upon the board of trustees power to.malce such general ordinances, by-laws and regulations as they deem proper and expedient for the good government and health of the village, and to have the management and control of the finances and of all property, real and personal, belonging to said corporation. Subdivision 5 of § 21 confers upon the trustees power “ to prevent the encumbering of the streéts, crosswalks and sidewalks; and to compel every person to keep snow and dirt from and off the sidewalk in front of the premises owned or occupied by such person.” In § 31 it is provided that “The street commissioner shall have the general supervision of the streets, alleys and highways and public grounds. He shall act under the direction of the trustees, who may at all times limit, restrain and regulate him in the performance of his duties, and assign him such lawful duties in respect to such streets, highways, alleys and public grounds as they may deem proper.” By § 37 the trustees “are authorized and empowered to raise money by tax * * * to pay all contingent expenses of the corporation, and also to carry into effect the several powers, provisions and privileges granted by this act.”

By § 44 the village is declared a separate road district, and it is provided “ the trustees shall have power to regulate, amend and construct cross and sidewalks, and to pave,' plank, grade, flag, straighten, widen, discontinue, alter and clean the streets, highways, bridges, sidewalks, drains and sewers of said village, and to prevent the incumbering of the same in any manner and to protect the same from encroachment and injury * * We think, under the provisions of the charter the defendant was clothed with power to regulate its streets, sidewalks and approaches thereto within the limits of the public streets of the village, and that it was charged with the duty of keeping the same in a reasonable condition for the use of the public. Sherman v. The Village of Oneonta, 49 St. Rep., 267, and cases cited in the opinion; Goff v. The Village of Little Falls, 47 St. Rep., 729; Stebbins v. The Village of Oneida, 23 id., 702; Pomfrey v. The Village of Saratoga Springs, 104 N. Y., 459 ; 5 St. Rep., 802 ; Nelson v. The Village of Canisteo, 100 N. Y., 89. Plaintiff in his complaint alleges that on the 7th day of January, 1887, upon the invitation of Gilmore he was riding in a cutter, to which was hitched a horse, along Main street of the village and that “while so passing upon said street the cutter struck and was driven, without the fault or negligence of plaintiff or said Gilmore, against and upon a large stone or rock within said street, and was thereby overturned and broken; this plaintiff and said Gilmore were thrown therefrom, and this plaintiff thereby and therefrom suffered and sustained serious, grievous bodily injuries, whereby he was caused great bodily pain and mental anguish; ” and the complaint further alleges “that said large stone or rock was an illegal obstruction in said highway, and was dangerous and liable, if not certain, to cause injuries to persons passing upon said highway, in vehicles which strike against or pass upon it. That the street commissioner and the board of trustees and the other officers of said village well knew before the said accident and the said injury to plaintiff that such rock was within said street, and was an illegal and dangerous obstruction thereto, and the injuries to plaintiff and all their consequent results were caused by the negligence, inattention and carelessness of said commissioners and said board of trustees, and their failure to fulfill and perform their duties and obligations as such officers and not to any extent or in any degree by the carelessness or negligence of said plaintiff or said Gilmore.”

Criticism is made by the defendant upon the complaint. We think it sufficiently stated a cause of action, and that the language we used in Sherman v. The Village of Oneonta, supra, may be appropriately applied as an answer to the criticism of the defendant. In that case we said “ If the defendant desired the complaint to contain a more accurate, definite and minute description of the place where the injuries were received, it should have sought its remedy by a motion to have the complaint made more definite .and certain, or that a bill of particulars be rendered. The defendant was not misled by the language of the complaint. The evidence that was received in respect to the location where the injuries took place was admissible. There is no available force in the criticism made of the complaint.” In the course of the decision delivered by the trial judge at the close of the evidence, he observed correctly, we think, that “ There is no doubt that the municipality have the duties to keep the street in repair for those passing along the streets.” It appeared by the evidence that the west line of Main street is ten feet west of the west line of the wagon or driveway and adjacent to the south side of the driveway upon the street, and that it is one foot from the street line to the sidewalk and that the sidewalk is some six feet and there is a grass plot or lawn about three feet and that in the lawn or grass plot is a row of trees extending southerly and north of the most northerly tree was the place of the stone which caused the overturning of the cutter in which the plaintiff was riding. The stone was some sixteen inches across east and west and twenty inches across north and south and one foot through up and down; and that at the time of the accident the stone was three feet and six or eight inches north of the trees. It appeared that the stone was placed in that position at the instance of the

i

j owner' of the Platt house by one, Jacob Greatsinger, while he was acting for or in behalf of the street commissioner of the village.

The avowed purpose of the stone Was to protect the tree from being driven against by persons driving upon the street, or from the street to the barn. It also appeared by the evidence that upon the occasion of the injuries the stone was covered with snow and was not readily seen, although, on behalf of the defendant, several witnesses testified that the snow was not entirely over the stone, and that it was visible. It also appeared that the north end of the stone was five or six inches south of the regular beaten track. When the injuries were received the horse was upon a slow jog or trot, although some evidence was given tending to show greater speed. When the right runner of the cutter struck the stone the cutter tipped over and the plaintiff struck his hip upon the snow of the beaten track, and Gilmore fell upon him and he received quite extensive injuries, for which this action is brought. We think no error was committed by the trial judge in holding thát the question of whether the plaintiff was free from contributory negligence or not was a question for the jury. We are also of the opinion that it was a question of fact whether the stone was an incumbrance of the street, and such an obstruction thereof as to leave the street in an unsafe condition; and that it was for the jury to determine whether the defendant had been guilty of negligence in suffering the stone to remain in the condition in which it was as disclosed by the evidence. Even if it be assumed that the stone was not placed there by the direction of the defendant, it had remained a sufficient length of time to arrest the attention or notice of the defendant or its officers, and if it was an incumbrance and a dangerous object to be left in the street in the manner in which it was suffered to remain, it became the duty of the defendant to remove the incumbrance so as to leave the street in a reasonable condition for the use of the public. Rehberg v. Mayor, 91 N. Y., 137; Kunz v. Troy, 104 id., 344; 5 St. Rep., 642 ; Langlois v. City of Cohoes, 58 Hun, 226; 34 St. Rep., 288. It appears that the street in question was one extensively used ,by the people frequenting the village. Taking the evidence produced upon the trial most favorable to the plaintiff, we are of the opinion that the question whether the defendant was guilty of negligence or not was one which should have been submitted to the jury.

It must be borne in mind that where a non-suit has been granted the plaintiff is entitled to the benefit of every fact that the jury could have found from the evidence and to every legitimate inference that is warranted by the evidence. McNally v. Phœnix lns. Co., 50 St. Rep., 681. We are of the opinion that there was more than a scintilla of evidence to uphold the plaintiff’s case and therefore the case of Hemmens v. Nelson, 138 N. Y., 529; 53 St. Rep., 94: and Corning v. Nail Factory, 44 N. Y., 577; and Dwight v. Germania Ins. Co., 103 id., 341; 3 St. Rep., 115; and Hall v. Stevens, 116 N. Y., 210; 26 St. Rep., 614, are not applicable to the case before us.

We are of the opinion that the non-suit was improperly granted and that a new trial should be ordered.

Motion for a new trial granted, with costs to abide the event. Martin and Merwtn, JJ., concur.


author: Hardin, P. J. Merwin, J. Martin, J.

text:
    The People, Resp’t, v. Anthony Girard, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 8, 1893.)

    1. Constitutional law—Vinegar act.
    The provisions of the “ vinegar act," chap. 515, Laws of 1889, are within the police power of the legislature, and the act is constitutional.
    3. Criminal law—concurred in by moke than one, punishable severally.
    The rule at common law that every crime, as far as respects the guilt and punishment of the parties engaged in the perpetration of it is several; and that if two or more persons concur in the commission of an offense, each offender is liable to a several punishment, extends to statute offenses as well as those which are punishable by the common law.
    Appeal from a judgment entered npon the verdict for $200 damages and $92.79 costs.
    ' Plaintiff’s complaint states that the dairy commissioner prosecutes this action in the name of the People to recover a penalty, in pursuance of the provisions of chapter 515 of the Laws of 1889, entitled “ An act to prevent deception in sales of vinegar,” and charging the New York state dairy commissioner with its enforcement,” passed June 15, 1889. The complaint alleges: “That the defendant, on or about the 17th day of March, 1892, at his store or place of business in the city of ITtica, * * * did, in violation of §§ 1, 2, 3, 4 and 5 of the act before referred to, and in contravention of the letter and spirit thereof at the time and place aforesaid, did sell and deliver, keep for sale and delivery, as and for cider vinegar, a compound or mixture which was not cider vinegar, nor was the same made from pure apple juice, which did not have or contain an acidity equivalent to the presence therein of at least four and one-half percentum, by weight, of absolute acetic acid, and said compound and mixture so sold as and for cider vinegar, as aforesaid, did have and contain less than four and one half percentum, by weight, of acidity, and did contain less than two percentum, by weight, of cider vinegar solids upon full evaporation over boiling water, and the mixture and compound so sold and delivered, offered for sale and kept for sale by the defendant at the time and place aforesaid, as and for cider vinegar, was made and produced in imitation or resemblance of cider vinegar, but said compound or mixture was not cider vinegar, nor was the same made from pure apple juice; and said mixture and compound so sold and delivered, offered for sale and kept on sale by the defendant at the time and place aforesaid, contained a preparation of sulphuric acid and other deleterious substances injurious to health, with artificial coloring matter to color the same in imitation and resemblance of pure cider vinegar ; and the barrel from which the same was drawn, sold and delivered, and in which the compound was kept, stored ready for sale, was branded with the name of ‘Williams Bros. & Charbenneau ’ doing business at ‘ Detroit, Michigan ’, with the words ‘ Amber Colored Vinger, 46 gal.’, in contravention of the statute in such case made and provided, and the compound aforesaid was not cider vinegar, nor was the same made from pure apple juice.’’
    The answer of the defendant contained a denial of “ each and every allegation in said complaint contained,” only. When plaintiff rested the defendant moved for a non-suit “ on the ground that no cause of action has been made out by the evidence.” The motion was denied and the defendant excepted. At the close of the evidence plaintiff asked for a direction of a verdict “for one penalty under § 2 and the last clause of § 4 of the Vinegar Act.” Defendant moved to dismiss the complaint “on the gi-ound that the facts proved do not establish a cause of action against this defendant, in that, the' cause of action, if any, appears to be against the defendant and John Gerónimo jointly, as partners, and cannot be enforced against this defendant individually, until the partnership assets are exhausted.” To that motion the court replied, “ there is no allegation in the answer of defect of parties. I deny the motion to dismiss the complaint.”, To that the défendant took an exception. Thereupon the court stated its view of the case and intimated an intention to order a verdict for the people of one penalty for $200. The defendant thereupon took an exception. Then the defendant asked “ to go to the jury on the evidence under § 2 of the act, as to whether or not the defendants sold .or offered for sale vinegar in imitation or resemblance of cider vinegar, which is not cider vinegar; ” the request was refused and the defendant took an exception. The defendant then asked the court “ to instruct the jury that that part of § 4 relied upon for the direction of a verdict, to-wit, the prohibition of an artificial coloring matter, in that section, is unconstitutional ; ” the court refused and the defendant took an exception. Thereupon the defendant asked “to go to the jury upon all of the evidence in the case as to the liability of the defendant ; ” it was refused and an exception taken.
    Millor, Finche & Brandegee, for app’t; Risley & Robinson and Henry M. Love, for resp’ts.
   Hardin, P. J.

Manifestly the legislature of 1889 in the passage of chapter 515 of the laws of that year assumed to exercise its police power. The title of the act is as follows : “ An act to prevent deception in the sales of vinegar, and charging the Mew York State Dairy Commissioner with its enforcement” An evil practice was existing in the state at the time of the adoption of the act and deleterious substances were being used in the manufacture of vinegar; substances which were detrimental to the health of the people consuming the impure and deleterious article being manufactured and sold and used to the detriment of the health of the citizens of the state. Evidently the intention of the legislature was, through its police power, to protect the citizens of the state. The act, after containing certain prohibitions and restrictions, in its sixth section contained the following provision: “ Whoever, by himself or another, violates any of the provisions of any of the foregoing sections shall be guilty of a misdemeanor, .and, upon conviction, shall be punished by a fine of not less than fifty dollars nor more than one hundred dollars.” Then follows the seventh section, which provides as follows: “ Section 7. If any person, by himself or another, shall violate any of the provisions of §§ 1, 2, 3, 4 or 5 of this act, he shall, in addition to the fines and penalties herein prescribed for each offense, forfeit and pay a fixed penalty of two hundred dollars for each offense. Such penalties shall be recovered, with costs, in any court of this state having jurisdiction thereof, in an action to be prosecuted by the New York State Dairy Commissioner or any of his assistants in the name of the People of the State of New York." Then follows an important provision relating to the proceedings in the prosecution or in a suit for penalty found in § 8 of the act which is as follows: “ The prosecution shall not be compelled to •elect in any trial for the misdemeanors or suits for the penalties for the violations of §§ 1, 2, 3, 4 and 5, where the indictment, information or complaint charges a violation of any two or more of such sections, between the charges or counts under such different sections.” Applying this rule given by the statute it was not necessary that the plaintiff should elect under which section a recovery of the penalty sought should be had ; it was sufficient for the trial and it is sufficient here, if the case made at the trial presents a violation of any of the provisions found in §§ 1,2, 3, 4 and 5 of the enactment. The learned trial judge rested his conclusion upon the evidence, which, in his opinion, established a violation of § 4 of the act. That section provides that: “ No person shall manufacture, produce, sell, keep for sale or offer for sale, any vinegar which shall contain any preparation of lead, copper, sulphuric acid or other ingredients injurious to health, or any artificial coloring matter.” The evidence produced at the trial quite satisfactorily established the fact that. the defendant kept for sale, offered for sale and sold vinegar, so called, containing “ artificial coloring matter.” We tljdnk there was no conflict in the evidence upon that subject Indeed, in the argument of the learned counsel for the appellant, it is assumed that the evidence established that fact; and he !also assumes that the prohibition “ is absolute and without regard to whether it causes the product to resemble cider vinegar or unmistakably distinguishes it from such vinegar.” We think the provision was inserted for the purpose of preventing “ deception in sales of vinegar,” and to protect the public health, and that the provision is valid and is within the police power of the legislature.

In People v. West, 106 N. Y., 296; 8 St. Rep., 713, Andrews, J., said: “ It is the province of the legislature to determine in the interest of the public what shall be permitted or forbidden, and the statutes contain very many instances of acts prohibited, the criminality of which consists solely in the fact that they are prohibited, and not at all in their intrinsic quality.” The general scope of the act was “ to prevent deception in sales of vinegar,” as appears by the title of the act We think the provision of § 4, which is relied upon by the People to sustain the recovery, is valid, and that its terms are supported by the principles laid down in People v. West, supra, and in People v. Arensberg, 105 N. Y., 123; 6 St. Rep., 789.

In People v. Gilson, 109 N. Y., 389 ; 16 St. Rep., 185, it was held, viz.: “While it is for the legislature generally to determine what laws and regulations are needed to protect the public health and serve the public comfort and safety, and the exercise of its discretion in this respect is not the subject of judicial review, yet a statute, to be upheld as an exercise of the police power, must have some relation to those ends.” We think the statute before us very clearly has “some relation to those ends,” and that the statute before us is quite distinguishable from the one under consideration in People v. Gilson, supra. It was for the legislature to say whether the insertion of any “ coloring matter ” in vinegar was calculated “ baffle ordinary inspection or whether it involves such danger to the public health as to require, for the protection of the people ” its entire prohibition, and it was for the legislature to say whether public policy required from it the exercise of its police power. The legislature "having determined these questions and inserted the prohibition found in the last part' of § 4 in the exercise of such power, we are inclined to the opinion that the clause of the act under discussion is constitutional and valid. Powell v. Pennsylvania, 127 U. S., 678.

(2.) We think the defendant cannot escape liability for the penalty given by the statute for the reason that the suit- was brought against him alone and not against him and his supposed partner. There was no defense of defect of parties stated in the answer. First, § 7 provides: “ If any person, by himself or another, shall violate any of the provisions of §§ 1, 2-, 8, 4 or 5 of this act, he shall * * * forfeit and pay a fixed penalty of $200 for each offense.”

In Palmer v. Conley, 4 Denio, 378, it is said : “ The rule at common law is universal that every crime, as far as respects the guilt and punishment of the parties engaged in the perpetration of it is several; and that if two or more persons concur in the commission of an offense, each offender is liable to a several punishment. This principle extends to statute offenses as well as to those which are punishable by the common law ; and in general there is no distinction in the application of it between the higher kinds of punishment and fines or mere pecuniary penalties.” .The foregoing views, if adopted, lead to an affirmance.

Judgment affirmed, with casts.

Merwin, J.

I concur in affirmance.

Martin, J.

As I understand this case, there is but a single question involved, which is the constitutionality of that part of § 4 of chapter 515 of the Laws of 1889, which provides that “ Ro person shall manufacture, produce, sell, keep for sale, or offer for sale, any vinegar which shall contain * * * any artificial coloring matter."

The action was to recover a penalty for selling vinegar in violation of what is known as the “Vinegar Act,” Laws 1889, chap. 515. The court directed a verdict for the plaintiff for $200, and expressly refused to submit to the jury the question whether the vinegar sold was in imitation or semblance of cider vinegar, although it is said that under the evidence there was a question of fact for the jury. The effect of this ruling was to hold, as a matter of law, that although the vinegar sold was neither unwholesome, nor calculated to deceive a purchaser thereof as being in imitation or semblance of any other article of the kind, still, the mere fact that it contained artificial coloring rendered the defendant guilty of a crime, and liable to a penalty of $200. If the portion of the section above quoted is not in contravention of the provisions of the constitution, which provides that no person shall be deprived of life, liberty or property without due process of law, it is practically admitted that the judgment is proper and should be affirmed. Thus we are required to determine whether the legislature had power, under the constitution, to pass a law forbidding the sale of vinegar which contained any artificial coloring matter which neither rendered it unwholesome nor tended to deceive a purchaser. While, generally, it is for the legislature to determine what laws are required to protect and secure public health, comfort, safety and the welfare of society, yet, under the guise of police regulations, it cannot arbitrarily infringe upon personal, or property rights, and its determination as to what is a proper exercise of the power is not final or conclusive, but is subject to the scrutiny of the courts. The legislature cannot properly pass an act which is ostensibly to protect the public health, but which does not relate to or is inappropriate for that purpose, and thereby destroy the property or interfere with the rights of an individual.

The right of liberty secured by the constitution includes the right of an individual to adopt and follow such pursuits not injurious to the community as he sees fit, and a legislative enactment which prohibits such an industry, when not injurious to the community or fraudulently conducted, is not constitutional. Matter of Jacobs, 98 N. Y., 98; The People v. Marx, 99 id., 377; The People v. Arensberg, 103 id., 388; 3 St. Rep., 621; S. C., 105 N. Y., 123; 6 St. Rep., 789; People v. Gilson, 109 N. Y., 389; 16 St. Rep., 185.

In the Jacobs’ case Judge Earl said: “Generally it is for the legislature to determine what laws and regulations are needed to protect the public health and secure the public comfort and safety, and while its measures are calculated, intended, convenient and appropriate to accomplish these ends, the exercise of its discretion is not subject to review by the courts. But they must have some relation to these ends. Under the mere guise of police regulations, personal rights and private property cannot be arbitrarily invaded, and the determination of the legislature is not final or conclusive. If it passes an act ostensibly for the public health, and thereby destroys or takes away the property of a citizen, or interferes with his personal liberty, then it is for the courts to scrutinize the act and see whether it really relates to and is convenient and appropriate to promote the public health. It matters not that the legislature may, in the title to the act, or in its body, declare that it is intended for the improvement of the public health. Such a declaration does not conclude the courts, and they must yet determine the fact declared and enforce the supreme law.”

In the Marx case it was held that the provision of the act of 1884, prohibiting the manufacture or sale as an article of food of any substitute for butter or cheese produced from pure, unadulterated milk or cream, is unconstitutional inasmuch as the prohibition is not limited to unwholesome or simulated substances, but absolutely prohibits the manufacture or sale of any compound designed to be used as a substitute for butter or cheese, however wholesome, valuable or cheap it may be, and however openly and fairly the character of the substitute may be avowed and published.

In the Arensberg case, 103 N. Y., 388. 3 St. Rep., 621, the court held that in order to sustain an indictment under the provision of the act of 1885 prohibiting the manufacture or sale of any article “ not produced from unadulterated milk or cream from the same," which is “ in imitation or semblance of or designed to take the place of butter," it must be made to appear that the article manufactured was, by the use of ingredients, not necessary or essential to the-article itself, made in imitation or semblance of butter, and that the manufacture of an article simply “ designed to take the place of butter,” is not an offense, as so much of the provision is unconstitutional.

In the same case, in 105 N.Y., 123; 6 St. Rep., 789, it was held that the provision of the act of 1885 “ to prevent deception in the sale of dairy' products,” which prohibits the manufacture or sale of any product not made from unadulterated milk or cream, but made “in imitation or semblance” of dairy butter, is constitutional, that the producers of butter from animal fats or oils although the product may be wholesome, nutritious and suitable for food, and so the manufacture and sale thereof may not be prohibited, have no constitutional right to resort to devises for the purpose of making their product resemble dairy butter, and the legislature has power to enact such laws as it may deem necessary to prevent the simulated article being put upon the market in such form and manner as to be calculated to deceive; that the statutory prohibition is aimed at a designed and intentional imitation of dairy butter in manufacturing the new product and not a resemblance in qualities inherent in the articles themselves and common to both, and that the sale of an- article known to the vendor to be oleomargarine, to which a coloring matter, not injurious to health, -had been added, which was not essential to the manufacture of the article but resorted to solely for the purpose of making it resemble the most valuable kind of dairy butter, was a violation of the act and justified a conviction on an indictment under it; and this, although the defendant offered it for sale and sold it as oleomargarine, It was also intimated in that case that the legislature has power to prohibit the coloring of winter dairy butter for the purpose of enhancing its price by making it resemble summer dairy butter.

In the Gilson case it was held that the provision of the Penal Code prohibiting the sale or disposal of any article of food, or an offer or attempt to do so upon any representation or inducement that anything else will be delivered as a gift, prize, premium of reward to the purchaser, is unconstitutional and void; that it is violative of the provision of the state constitution securing to every person liberty and property unless he is deprived thereof by due process of law, and not valid as a proper exercise of the police power of the state, or as a health law or regulation of trade in food, to prevent the adulteration thereof.

In applying the doctrine of these cases to the question under consideration, it must be borne in mind, that whether the jury would or would not have been justified in finding the defendant guilty of selling vinegar in imitation or semblance of cider vinegar, is not before us. As the courts held, that question was clearly for the jury. Under the evidence there was no doubt but that the vinegar sold was perfectly wholesome and the substance used in coloring was innoxious ana harmless. Hence, as we have already seen the only question is whether, where an article of food in general use is wholesome and healthful, is not made or sold in semblance of any other article so that a purchaser is neither deceived nor furnished with that which is unwholesome, the legislature can pass beyond that limit and prevent the selling of it solely because it contains artificial coloring matter.

The principle of the authorities cited tends to sustain the contention of the appellant that the legislature, so far as it attempted to make the mere act of selling vinegar, in which there was any artificial coloring matter, a crime, has exceeded its constitutional power. And yet, upon examining the dissenting opinion in the case of People v. Cipperly, 37 Hun, 324, which was adopted by the court of appeals, 101 N. Y., 634, wherein it was held that the legislature had power to pass an act declaring all milk to be adulterated which did not contain a certain per centum of milk solids and fat, even though it was in fact unadulterated, and also considering the fact that coloring matter was not a necessary or essential ingredient of the vinegar sold in this case, I am led to doubt the correctness of the appellants contention. As every presumption is in favor of the constitutionality of legislative acts, and a case should be practically free from doubt before an act of the legislature should be declared unconstitutional, I am disposed to concur in the conclusion that the judgment should be affirmed.


author: . Clement, Oh. J.

text:
    George D. Glass, Resp’t, v. The United Domestic Sewing Machine Co., App’lt.

      (City Court of Brooklyn, General Term,

      Filed October 23, 1893.)

    1. Contract—Employment—Agency.
    In an action for breach of contract of employment plaintiff alleged an employment for a year and testified that the contract was made with defendant’s secretary. The secretary testified that he generally made the arrangements with the different employes, but that there was no agreement with plaintiff for a year. Held, that a motion to dismiss was properly denied, as there was evidence of authority on the part of defendant to employ plaintiff.
    2. Same—Grounds for discharge.
    Plaintiff was requested to go to other cities and take charge of defendant’s agencies at those places at a different salary, which he refused to do. Held, that the services he was requested to perform were not included in the contract in suit, and that his refusal was not sufficient cause for his discharge.
    Appeal from judgment in favor of plaintiff, and from order denying motion for a new trial.
    Plaintiff alleged a contract for a year, and that defendant wrongfully discharged him before the expiration of that period, and asked judgment for salary and commission for the balance of the year. Defendant denied that there was a contract for a year, and justified the discharge on the ground that plaintiff was ordered to remove from New York city, and take charge of one of defendant’s agencies at Boston or Newark, and that he wrongfully refused. Plaintiff testified that he entered defendant’s employ in 1873, and remained in it about nineteen years. About the last of October, 1891, he had a conversation with Mr. Blake, defendant’s secretary, who asked him to take charge of defendant’s retail offices in the east. Mr. Blake .offered him $2,500 a year and one-half of one per cent, on all remittances from the offices for sale of machines, forms, fashions, and merchandise. Plaintiff accepted the proposition, and was told that the contract was to begin at once. Mr. Blake’s testimony was that he generally made the arrangements with defendant’s employes, and employed them. He said there was no agreement to employ plaintiff for a year. In June, 1892, he asked plaintiff to take charge of an agency in Boston, and he refused. He subsequently asked him to take charge of an agency in Newark, which plaintiff also refused. Plaintiff testified that Mr. Blake offered him $3,000 to take charge of either of the agencies mentioned.

      Herbert F. Andrews, for app’lt; Boswell W. Keene, for resp’t.
   . Clement, Oh. J.

The plaintiff at the trial, claimed that he was employed by the defendant for a year, and that before its expiration he was wrongfully discharged, and recovered for the unpaid salary after his discharge. The defendant denied that the plaintiff was employed for a year, and contended that he was discharged for good cause. The jury having found on the questions of fact in favor of the plaintiff, the appellant seeks a reversal of the judgment on the grounds: First, that there was no evidence in the case that the secretary of the defendant, Mr. Blake, had authority to employ the plaintiff; second, that the cause proven for the discharge of plaintiff was, on the undisputed testimony, sufficient. On the authorities, the plaintiff was called upon to prove that the secretary had authority to bind the defendant, or to prove a ratification by the corporation of his acts. Alexander v. Cauldwell, 83 N. Y., 480 ; Wilson v. Kings Co. El. R. R. Co., 114 id., 487; 24 St. Rep., 81; Jourdan v. L. T. R. R. Co., 115 N. Y., 380; 26 St. Rep., 138. The plaintiff, before the contract in question, had been in the employ of defendant for a period of about nineteen years, and the latter portion of the time at a yearly salary. The new contract called for services different from the previous employment. Plaintiff worked seven months before his discharge, and was paid for same by the defendant. Mr. Blake, the secretary, testified that he generally made the arrangement with the different employes of the company. The testimony was ample to justify the denial of the motion to dismiss, for the reason that there was evidence of authority on the part of Mr. Blake to employ the plaintiff. The plaintiff admitted that he had refused to comply with the orders of the officers of the company, but claimed that he was not bound to obey such orders under his contract. On this question, as the point was raised on a motion to dismiss or to direct a verdict, we will have to assume that the plaintiff told the truth. After carefully reading his testimony, we are satisfied that the defendant requested plaintiff to make a new contract to be performed at Boston, and also a new contract for services at Newark. In fact, Mr. Blake so understood, because he offered a higher salary,—$3,000 per year. The services which plaintiff was requested to perform were not included in the contract in suit.

Judgment and order denying new trial affirmed, with costs.

Van Wyck, J., concurs.


author: Clement, Ch. J.

text:
    Gottleib W. Warner, App’lt, v. Fredericka Will, Resp’t.

      (City Court of Brooklyn, General Term,

      Filed October 23, 1893.)

    Adverse possession—Specific performance.
    Proof that a deed of land was given to plaintiff’s ancestor in 1869, and that he built a fence around such land and built a house thereon seventeen years ago, in which he lived until his death, is not sufficient to show a title hjr adverse possession which is so free from reasonable doubt as to authorize a judgment for specific performance of a contract to purchase said land.
    Appeal from judgment in favor of defendant

      Martin _E Halpm, for app’lt; Howard C. Conrady, for resp’t,
   Clement, Ch. J.

This action was brought by the plaintiff to compel the specific performance of a contract by the defendant, whereby the defendant agreed to purchase of the plaintiff an undivided half of certain real estate on Kane place, in this city. The defendant, after an examination of the title by her attorney, declined to carry out her agreement, on the ground that the plaintiff did not have title to the property. Plaintiff claimed that he had title by adverse possession. There was judgment for defendant at special term, and plaintiff has taken this appeal. We think that the testimony in the case is entirely insufficient to-establish the claim of plaintiff. The defendant proved a perfect record title in the Brooklyn & Jamaica Railroad Company, who received their deed about March 27, 1866. On the other hand, plaintiff, as a foundation of his title, put in evidence a deed by one Jacob H. Stackman, dated October 11, 1869, to Joseph Koehl and Antonia Koehl, and showed that, by descent, he obtained the title of such grantors, if any, to an undivided half. The only oral testimony on the point was given by the plaintiff:

“I remember and recollect the time when my father and mother bought this Kane place property. After it was bought, what was done with it by my father and mother was, a fence was put around it, and it was lying idle. The house will be built; on the 1st day of June it will be seventeen years. My father and mother had possession of that property from the time they bought, it from Mr. Stackman up to the time of their death. They lived on it since the day it was built On'the 1st day of June last it-was finished sixteen years.”

The authorities cited by the counsel for plaintiff are actions at law, or, if in equity, where the testimony showed conclusively adverse possession for a much longer period than twenty years. If we assume the truth of the testimony of the plaintiff, the defendant, if she took title, might be sued by the owner of record, the Brooklyn & Jamaica Railroad Company, and the testimony of plaintiff in this case, when given in such action, would not justify the direction of a verdict. We do not hold that plaintiff had no title to the property, but we do think that the title offered was not free from reasonable doubt. Dingley v. Bon, 180 N. Y., 607 42 St. Rep., 646.

Judgment affirmed, with costs.

Yan Wyck, J., concurs.


author: McAdam, J. GriLDERSLEEVE, J.

text:
    George H. Wooster, App’lt, v. Horatio Bateman et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed October 24, 1893.)

    Pleading—Amendment—Laches.
    A denial of a motion to amend the complaint in material particulars, made nearly sixteen years after service of the original, and five'months-after the last pleading in the case, is a proper- exercise of the discretion of the court, as the plaintiff in such case, is guilty of gross laches.
    Appeal from order denying plaintiff’s motion for leave to serve an amended complaint
    The following is the opinion of the court below:
   McAdam, J.

The actions were commenced in 1877 and 1878 ;■ have been tried and retried. The plaintiff now moves to amend the complaint in material respects. Laches are sufficient to defeat, the motion. Thus, motions to amend a complaint so as to completely change it, made three years after issue joined, and nine years after the transaction, were denied for laches. Oowdy v. Poullain, 2 Hun, 218; Egert v. Wicker, 10 How. Pr., 193; Sheldon v. Adams, 18 Abb. Pr., 405 ; 41 Barb., 54; 27 How. Pr., 179, and Brusie v. Peck, 6 St. Rep., 709; Johnson v. American Writing Machine Co., 22 St. Rep., 429. Considering the character of the amendment sought, the pilgrimages the cases have gone through, and the delays already incurred, it would hardly be in furtherance of justice to allow the amendment proposed. Motion denied,, with ten dollars costs, to abide the event.

W. 0. B. Milliken, for app’lt;. Arnoux, Bitch & Woodford, for resp’ts.

GriLDERSLEEVE, J.

This is an appeal from an order denying plaintiff’s motion for leave to serve an amended complaint The original complaint was verified the 12th of .July, 1877. The answer of the defendant Bateman was served on or about the 22d day of September, 1877. The same defendant served a supplemental answer on June 16, 1892, and on or about June 25, 1892, plaintiff served a reply. On November 28,1892, defendant Brewster voluntarily appeared in the action and served an answer, and on December 13, 1892, the plaintiff served a reply. On May 24, 1893, nearly sixteen years after the original complaint was served, and five months after service of the last pleading in the case, i. e., the reply of plaintiff to the answer of defendant Brewster, the plaintiff made a motion for leave to serve an amended complaint. The proposed amendments are of such a-character as almost to completely change the complaint. The motion was addressed to the discretion of the learned court below, and we are of opinion that the discretionary powers of the court were not abused. The plaintiff has been guilty of gross laches. Without discussing the several other points raised by the learned counsel for the respondents, we reach the conclusion that for the reasons above expressed, and for those set forth in the opinion of the court below, the order must be affirmed, with ten dollars costs and disbursements.

Freedman, J., concurs.


author: Per Curiam.

text:
    Henry J. MacKaye, Resp’t, v. Jeanne E. Soule, Impl’d, App’lt.

      (New York Superior Court, General Term,

      Filed October 24, 1893.)

    Injunction—Pendente lite.
    In an action to set aside an alleged fraudulent transfer of stock and for an injunction anda receiver, an injunction pendente lite, restraining the incumbering or disposal of the stock may properly he granted, as such relief is essential to the judgment demanded and necessary to make it effectual.
    Appeal from order continuing a temporary injunction restraining the defendant Soule from incumbering or disposing of the stock in question during the pendency of the action.
    Action to set aside as fraudulent a transfer of certain shares of stock of the Beal Estate Exchange and Auction Boom, Limited, made by defendant Day to defendant Soule, and for an injunction and a receiver.

      The following is the opinion of the court below :
    McAdam, J.—The plaintiff has filed a creditors’ bill claiming, among other things, a fraudulent transfer of ten shares of stock by the judgment debtor to one Soule without consideration, and that she holds the same for him in trust. It contains the usual prayer for a decree, declaring the transfer void, for an injunction, the appointment of a receiver, etc. An injunction pedente lite is applied for in aid of the bill, under §§ 1876, 603 of the Code. The temporary relief is essential to the judgment demanded, and necessary to make it effectual. In addition to this, it is a rule that where an answer is interposed the court may grant such relief as the parties are entitled to, whether demanded in the complaint or not. Armitage v. Pulver, 37 H. Y., 494; Jones v. Butler, 20 How. Pr., 189; Bell v. Merrifield, 109 H. Y, 202; 14 St. Eep. 796. The facts charged entitle the plaintiff to relief. Motion to continue injunction granted, without costs.

      Mooney & Shipman, for app’lt; £r. H. Starr, for resp’t.
   Per Curiam.

The order should be affirmed with ten dollars costs and disbursements, upon the opinion of the learned judge below.

Freedman and Gtldersleeve, JJ., concur.


text:
    The Mayor, etc., of the City of New York, Resp’t, v. The Manhattan Railway Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 13, 1893.)

    1. Railroad—-Elevated—Compensation for use of street.
    Upon acceptance by the company named in the act of the franchise granted by chap. 489, Laws of 1867, the obligation imposed by said act of the payment of a percentage of the net income as compensation for the use of the streets became fixed without further legislation, and defendant, as its successor, took the franchise, rights and property subject to such obligation.
    2. Same—Connections,
    Said obligation extends to the income from connecting routes constructed under the provisions of the rapid transit act.
    8. Same—Accounting.
    In such case an action for an accounting to determine the account for an accounting.
    Appeal from judgment of special term in favor of plaintiff in an action for an accounting.
    The following is the opinion of the special term :
    Ingraham, J.—By chapter 489, Laws 1867, the West Side, Yonkers & Manhattan Eailroad Company, a corporation organized under the general railroad act, was authorized and empowered to construct an elevated railroad in the counties of Hew York and Westchester upon a certain specified route. By § 9 of that act it was provided “ that the said company shall pay the sum of five per cent, of the net income of said railway from passenger traffic upon Manhattan island as aforesaid, into thé treasury of the city of Hew York, in such manner as the legislature may hereafter direct as a compensation to the corporation thereof for the use of the streets thereof.” And this action is brought to enforce the obligation imposed upon such corporation by this section.
    In deciding this question I shall assume that chapter 855 of the Laws of 1868 is unconstitutional The court of appeals in Be New York El. B. Co., 70 H. Y., 327, appears to have intimated an opinion that this act was in conflict with the provisions of the constitution. The defendants claim that the act is unconstitutional, and I think it my duty to follow this intimation of the court of appeals. The defendants strenuously insist that § 9 of the act of 1867, before referred to, did not impose any obligation upon the corporation therein named to pay the 5 per cent named into the treasury of the city of Hew York until the legislature should subsequently direct as to what manner the same should be paid; that further legislation was contemplated and necessary before any obligation would exist which required the corporation to pay to the city any sum of money whatever. I think, however, that such a construction would be contrary to the plain intent of the legislature and expressed in the act, and that, upon the acceptance of the franchise granted by the act, the corporation became bound to pay to the city of Hew York 5 per cent, of the net income of the railway from passenger traffic upon Manhattan island. It is apparent that no further direction from the legislature was necessary. The plaintiffs have by law an officer whose duty it is to receive and collect all sums of money due to the city of Hew York. The money to be paid to the corporation was to be paid to the city as compensation for the use of the streets, and under the provisions of the act 5 per cent of the net earnings became a part of the money of the city, which was entitled to receive as a compensation for the use of a portion of its property. Ho further direction was necessary as to the manner of its payment, and it i$ difficult to perceive what object there was for the insertion of the words “.in such manner as the legislature shall hereafter direct” in the act. It may be possible that it was deemed necessary to insert such words in order to give the legislature control, if it saw fit to exercise it, of the method of payment. The obligation to pay, however, was distinct, and by the acceptance of the privilege granted to the corporation it became a contract, whereby it became bound to pay to the city the sum mentioned, and it seems to me clear that, in the absence of further direction from the legislature, that obligation on the part of the railway should be enforced. In the case of Mayor, etc., of New York v. Twenty-third St. B. Co., 313 H. Y., 314; 22 St. Rep. 958, asimilar provision was construed. A railroad corporation was there required to pay annually on the 1st day of October into the treasury of the city of Hew York one per cent, of the gross receipts of the company, and it was held that this was a charter obligation, and that it was bound to pay one per cent of its receipts to the city, not a sum equal to one per cent, hut so much of the gross receipts; that the railway corporation would receive one per cent, of all the fares paid to it to and for the use of the city under the obligation to pay it to the city. Applying this principle here, it would follow that when the railroad corporation received the fare from a passenger it received five per cent, of that fare, after deducting the expenses of operating the road, for the use of the city, and that sum became at once the city’s money ; and, in the absence of any further direction from the legislature, I can see no reason why the city is not entitled to recover from the corporation this money which the corporation has received for the use of the city.
    It is a familiar principle, universally applied in the construction of acts of this kind, that where any ambiguity exists, or a dual interpretation may be indulged, such a construction shall be given as shall be most strongly against the corporation. Every reason is to be resolved adversely to it, and the public is to be entitled to the benefit of the doubt. See Mayor, etc., of New York v. Dry Dock, etc., R. Co., 47 Hun, 200; 13 St. Rep., 396, affirmed by court of appeals, 112 M. Y., 141 ; 20 St. Rep., 236. It appearing, therefore, that the corporation was bound to pay to the city of Mew York five per cent, of its net income from passenger traffic, this defendant, having succeeded to the franchise, rights, and property of the corporation named in that act, took with such property the obligation to pay the percentage named in the act. This is expressly decided by the court of appeals in the case of Mayor, etc., of New York v. Twenty-third St. R. Co., 113 M. Y., 319 ; 22 St. Rep., 958, before cited.
    The important and difficult question in the case, however, remains to be determined. The act of 1867, before referred to, authorizes the corporation therein named to construct a railroad through Greenwich street and Minth avenue in the city of Mew York. The Mew York • Elevated Railroad Company subsequently acquired by purchase the portion of the railroad built, and its franchise and right, and the legislature, by chapter 595 of the Laws of 1875, confirmed in the possession of the Mew York Elevated Railroad Company the rights, powers, privileges, and franchises granted to the corporation named in the act of 1867, and the Mew York Elevated Railroad Company thereupon proceeded to build certain portions of the railroad authorized by the act of 1867, aud not built by the West Side Elevated Railroad.. Subsequently the act known as the “ Rapid Transit Act” chapter 606 of tfie Laws of 1875 was passed. That act provided for the organization of corporations to construct elevated railroads, the appointment of commissioners to determine the route upon which such railroads should be built, and by § 36 of that act it was provided that whenever the route or routes determined upon by the commissioners coincided with the route or routes given by the charterxof the existing corporation formed for the purposes provided by the act, such corporation should have the like power to construct and operate such railroad or railroads upon the fulfillment of the requirements and directions by said commissioners as a corporation formed under the said act; and the said commissioners were authorized to fix and determine the route or routes by which any elevated steam railroad or railroads then in actual operation should connect with other steam railroads, or the depot thereof, or with steam ferries, upon fulfillment by such elevated railway companies of such of the requirements and conditions as were imposed by said commissioners. The act then provided as follows : “And when any connecting route or routes shall be so designated, such elevated railway company may construct such connection with all the rights and with the like effect as if the same had been a part of the original route of such railway.” Under the provisions of this act commissioners were appointed. The Hew York Elevated Railway Company was at the time operating an elevated railway in the city of Hew York which had been constructed under the act of 1867, before mentioned, from a point on Hinth avenue and Thirty-fourth street through Hinth avenue and Greenwich street to the lower end of the street It came, therefore, within the provisions of this act, as an elevated steam railway in actual operation. The commissioners under the act determined a route by which the existing elevated railroad company, viz.: the Hew York Company, might connect with other steam railways, or the depots thereof, and with steam ferries beginning at the intersection of Greenwich street and Park place and extending through several streets to Third avenue to the Harlem river with several branches or turnouts.
    The Hew York Elevated Railway, under the authority thus given to them, constructed a railroad upon the route so fixed, and the question to be determined is whether or not the obligation to pay five per cent, of the net earnings from passenger traffic extended to such traffic upon the railroad in Third avenue built under the permission thus granted. In determining this question, the principle before mentioned, that in the construction of all statutes of this character the construction must be adopted which is most favorable to the public where the statute is capable of more than one construction, must not be lost sight of. At the time the rapid transit act was passed, the Hew York Elevated Railway was operating so much of its road as had then been constructed, and in operating that road it was paying to the city of Hew York the percentage required by the act under which it had obtained authority to build the road. The corporation had not disputed its liability to pay such five per cent., but expressly recognized it by making the payments. By operation of the provisions of section 36 of the rapid transit act, it was authorized to extend its road so that the length of its road was more than doubled, and, when the railroad company constructed said connection, it had, as to such extension, all the rights, and maintained and operated it with like effect, as though the same had been a part of the original route of the railway. What would have been the effect if the extension had been built as part of the original route of the railway ? Clearly the company would have been bound to pay five per cent, of its net income from passenger traffic upon such extension to the city, and I think it follows that, by building the extensión under the authority granted by the provisions of the statute, the Hew York Elevated Railroad Company became liable to pay such percentage of its passenger traffic to the city. Such a construction is the only one that will give effect to the words, “ with like effect as- though the same had been part of the original route of such railway.”
    If the act authorizing the construction of the original road had contained limitations as to the fare to be paid, regulations as to the carriage of passengers, or other regulations as to the method by which the business should be done, would it not be clear that such regulations would apply and bind the corporations as to the operation of the extended railroad? And I think it clear that this obligation to pay also applied to the extension. It seems to follow, therefore, that the Hew York Elevated Railroad was bound to pay to the city of Hew York five per cent, upon its receipts for passenger traffic, both upon its original and upon the extension that it was authorized to build by the commissioners appointed under the rapid transit act; and the Hew York Elevated Railroad so construed its obligation, as it had undertaken to pay to the city a sum which it assumed would discharge it from that obligation. Upon the lease by the Hew York Elevated Railroad Company to the defendant, upon the principle settled in the case of Mayor, etc., of New York v. Twenty-third SL B. Co., 113 H. Y., 319; 22 St. Rep., 958, before cited, the defendant became liable to the plaintiff for the percentage to be paid by the company, and that amount did not depend upon the amount of rent that the defendant should pay to the Hew York Elevated Railroad Company. As before stated, when it received a fare it received for its own use ninety-five per cent, and for the city of Hew York five per cent. As was said in the Twenty-third St. B. case: “ When the defendant took the place of the lessor corporation, it became obligated to take and return one per cent, of the fares received by it to and for the use of the city, and to make payment thereof to the city;” and, so far as the city was concerned, it was entirely immaterial as to what sum the defendant paid to the Hew York Elevated Railroad Company for rental; whether it paid the interest on its bonded indebtedness or not, five per cent, of the net income of the railroad from passenger traffic was the money of the city, and when the defendant assumed possession of the road, and operated and used its property and franchise, it became liable to the city for such percentage.
    The point is also taken by defendant that an action for an accounting cannot be maintained, but that the remedy is an action at law. It would seem, however, that, as the defendant has collected the money of the city for which it was bound to account to the city, and where an accounting is necessary to determine the amount due of the city’s money in possession of defendant, an action for an accounting is the proper remedy ; and in the case of Mayor, etc., of New York v. Twenty-Third St. B. Co., supra, which was an action under an obligation of the like character, an interlocutory judgment for an accounting was entered, which was affirmed, the court of appeals thus approving the form of the action.
    All but one of the counterclaims are disposed of by the con- , elusion at which I have arrived as to the liability of the defendant under the act of 1867. The counterclaim remaining undisposed of is the one under which a recovery is sought for the amount paid by the defendant, the New York Elevated Railroad Company, for property of abutting owners in the street that had been appropriated by the elevated railroad, but I do not think there is any basis for the recovery against the city for such cause of action. It was the property in the streets that belonged to the city that the statute authorizes the corporation to use, and it was as compensation for the use of the city’s property that the five per cent, was to be paid. Nothing in the act of 1868 can be construed into.a covenant on behalf of the city whereby the city agreed to acquire for the use of the corporation the property other than that owned by itself. It authorizes the corporation to use the city property, but, if the railway corporation wished to use the property of private individuals in the construction of its road, it is bound to acquire the title to such property by purchase or other proper proceedings. The railroad corporation was not bound to accept the franchise granted to it, but, having accepted it, it was bound to pay for its use, and upon no principle could it compel the city to give to it any more than the property that the city had in the streets which was necessary for its use. It follows, therefore, that the plaintiff is entitled to an interlocutory judgment for an accounting before a referee, the question of costs to be reserved until final judgment. Decision and judgment to-be settled on notice.

      J. T. Davies, for app’lt; Theo. Connoly, for resp’t.
   Per Curiam.

Judgment affirmed, with costs, on opinion of court below.

Yah Brunt, P. J., Follett and Parker, JJ., concur.


author: Yan Brunt, P. J.

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

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    Trespass—Usme plaintipp’s body as a shield.
    Where, from the evidence, the jury may find that the defendant used the plaintiff as a shield against apprehended danger of an explosion of which he knew the plaintiff to be ignorant, the burden is cast upon the defendant to establish that his wrongful act did not, in the slightest degree, contribute to any part of the injury which the plaintiff sustained by reason of the explosion.
    Appeal by plaintiff from a judgment dismissing the complaint at the trial.

      Davis, Worh, Pincoffs & Jessup (Noah Davis, of counsel), for app’lt; John F. Dillon and Push Taggart (.Edward 0. James, of counsel), for resp’t
   Yan Brunt, P. J.

This action was brought to recover damages because of certain alleged wrongful acts of the defendant. The answer admitted some of the acts, but denied that any wrong had been done by the defendant to the plaintiff. The facts appearing upon the trial seem to be substantially as follows : The plaintiff had for a number of years been accustomed to call upon the defendant at his office on business two or three times a week and sometimes oftener. On the morning of the 4th of December, 1891, he went to call on the defendant, at the request of his employer. Upon entering the office occupied by Mr. Sage, he found Mr. Sage and a person having a little satchel in his hand (who was a stranger to him, but whose name was subsequently ascertained to be Norcross) standing by the entrance of the anteroom, talking. The plaintiff passed in without speaking to Mr. Sage, and entered the anteroom, to there await the termination of the conversation. He stood near the center of a table, at the end of the room farthest from the door at which Mr. Sage was standing, which table stood next to a railing in which there was a gate opening into a small space between the railing and a window looking upon Rector street, in which small space was a door opening into Mr. Sage’s private office. While standing at the table, the plaintiff did not hear any of the conversation between the defendant and the other man. After he had stood there, facing the window, half a minute, or a minute, at the outside, Mr. Sage came from behind, away from the visitor, but still looking at him, and placed his hand upon the plaintiff’s shoulder without speaking to him. He then took his left hand down from the plaintiff’s shoulder, and took plaintiff’s left hand in both of his, and drew the plaintiff gently towards him, and gently turned him round, and stood with one thigh resting upon the outer corner of the table.

The plaintiff testified that the defendant did not use any force . whatever on him, and that the only exercise of power on the part of Sage of which he was conscious at the time was that it was just sufficient to move him, but without any idea of force, or any thing of the sort, and that he moved voluntarily, because he offered no resistance, and that he was not conscious that Sage was pulling him at the time. The result of this change of position was to bring the body of the plaintiff between the defendant and the visitor, the body of the plaintiff covering the front of Sage’s body. After Sage had been in this position for a second or two, he spoke to the visitor, and said, as the plaintiff testified, “ If I trust you, why can’t you trust me ? ’’ or, “ If you can’t trust me, I can’t trust you.” At that moment an explosion took place, and the plaintiff and Mr. Sage were thrown upon the floor, a person who was standing by the Rector street window was blown through the window, and killed, the visitor with whom Mr. Sage was talking was blown to pieces, and the rooms were a general wreck. It further appears from the evidence that the stranger who stood in the doorway when the plaintiff entered had handed to the defendant the following letter: “ This carpet bag I hold in my hands contains ten pounds of dynamite, and, if I drop this bag gn the floor, it. will destroy this building in ruins, and kill every human being in it. I demand $1,200,000, or I will drop it. Will you give it, yes or no?” The plaintiff was severely injured by the explosion, and this action was brought to recover damages claimed to have been sustained by reason of the alleged wrongful act of the defendant in using the plaintiff’s body to protect himself from the effects of the anticipated explosion ; and the question presented upon this appeal is whether this action can be maintained.

It is urged upon the part of the defendant that the plaintiff’s case wholly failed to establish that the defendant’s action was either wrongful,or that it was a proximate cause of plaintiff’s injury, or an efficient cause without which the injury would not have happened, and that Norcross being the sole cause of the injury, Sage’s act was not a proximate cause of the accident or of the damage to the plaintiff; that it did not even contribute to the accident or the damage, and hence Sage is not liable; that it was not even proved to be one of several concurring acts that produced the explosion, which explosion was the only and sole cause of plaintiff’s damage; and that the plaintiff’s testimony affirmatively, establishes that his injuries were caused by the unlawful act of Norcross in exploding the dynamite, an act with which the defendant was not in any way connected, and for which, therefore, he was not responsible. Numerous cases are cited to support the propositions which have been advanced, and the principle is invoked that an act of force, done in necessary self-defense, causing injury to an innocent bystander, is damnum sine injuria, for no man does wrong or contracts guilt in defending himself against an aggressor, in support of which proposition attention is called to the celebrated Squib case, which would only tend to hold Nor-cross liable for the damage which he had committed.

The defendant also cites the cases of Ring v. City of Cohoes, 77 N. Y., 83; Searles v. Railway Company, 101 id., 661; Taylor v. City of Yonkers, 105 N. Y., 203; 7 St. Rep., 332; Ayres v. Village of Hammondsport, 130 N. Y., 665; 41 St. Rep., 692; Grant v. Railroad Co., 133 N. Y. Y., 657; 45 St. Rep., 305; and other cases, in support of the proposition that when several proximate causes contribute to an accident, and each is an efficient cause, without the operation of which the accident would not have happened, it may be attributed to all or any of the causes, but it cannot be attributed to a cause unless without its ■operation the accident would not have happened. These cases, however, seem to have no application to the case at bar. Those were cases in which the question arose as to whether the plaintiff ■could recover because of alleged negligence of the defendant, and the proof showed that there were two causes, from either one of which the accident might have occurred, in respect to one of which the defendants were chargeable with negligence, and in respect to the other they were not; and the court held that a recovery could not be had unless it was proved that the injury resulted from the cause in respect to which the defendants were chargeable with negligence. Our attention is also called to the language of Mr. Justice Holmes, in his work on the Common Law, where it is laid down that the general principle of our law is that loss from accident must lie where it falls, and this principle is not affected by the fact that a human being is the instrument of misfortune. And the language of Mr. Justice Nelson is cited where he says:

“ Ho case or principle can be found, or, if found, can be maintained, subjecting an individual to liability for an act done without fault on his part. All the eases concede that an injury arising from inevitable accident, or, which in law or reason is the same thing, from an act that ordinary human care and foresight are not able to guard against, is but the misfortune of the sufferer, and lays no foundation for legal responsibility.”

Ttie case of Brown v. Kendall, 6 Cush., 292, before Chief Justice Shaw, is also cited, in which it appeared that the defendant, while trying to separate two fighting dogs, raised his stick over Iris shoulder in the act of striking, and accidentally hit the plaintiff in the eye, inflicting upon him a severe injury, and in which the court held that, although defendant was bo.und by no duty to separate the dogs, yet, if lie was doing a lawful act, he was not liable, unless he was wanting in the care which a man of ordinary prudence would use under the circumstances; and that the burden was on the plaintiff to prove the want of such care. These cases, also, do not seem to us to be applicable to the one at bar. There the party proceeded against was held to be without fault, and, while doing a lawful act accidentally inflicted an injury upon another.

About the correctness of such a proposition we do not think there is any room for doubt. But the facts of the case at bar do not necessarily place the defendant in the position of a person doing a lawful act, and thereby causing the plaintiff to be injured. In the consideration of the testimony offered upon the part of the plaintiff, those inferences which are0most favorable to the cause of action attempted to be established by him must necessarily he drawn, and the ruling of the court below can onlybe sustained in case, upon no theoryof the proof, a cause of action was made out. The jury would have a right to infer from the evidence in this case that the defendant being in great fear lest Horcross would carry out the threat contained in his written memorandum to him, and explode the dynamite which he had in his bag, placed the plaintiff between himself and the apprehended danger as the best possible screen which he had at hand. How, if the defendant put his hand upon or touched the plaintiff, and caused him to change his position, with that intent, he was guilty of a wrongful act towards the plaintiff; and, if the plaintiff was injured by the happening of the anticipated catastrophe, then the burden is thrown upon the defendant of establishing that his wrongful act did not in the slightest degree contribute to any part of tlieunjury which the plaintiff sustained by reason of the explosion. It is not necessary for the plaintiff to show that he would not have been so severely injured if he had been left standing in his original position ; but, the defendant having wrongfully placed him in the changed position, with the intent of using him as a shield, and he being injured by the explosion which was anticipated by the defendant, in order to escape liability for his wrongful act- towards the plaintiff in thus using him as a shield he is bound, at least, to show to the satisfaction of the jury that'the plaintiff would have been injured to the same extent had he been left untouched. There is no question of proximate cause. The' court cannot say from the evidence introduced upon the trial that the plaintiff would have heen injured to just as great extent if he had been left untouched ; and the defendant, having perpetrated this wrong against the plaintiff, having done so with the wrongful intent of saving himself from injury by exposing the plaintiff to injury, cannot be heard to say that there is no proof but that he would have been injured anyhow. Being the wrongdoer in attempting to make this improper use of the plaintiff’s body, he must clear his skirts of any possible inference that some at least of the injuries of the plaintiff may have resulted from his wrongful act.

The whole groundwork of the respondent’s argument is that the motion to dismiss was properly granted-, because it was incumbent upon the plaintiff to establish that without Sage’s act he would not have been injured; thus completely turning around the question as to the burden of proof. If Sage had been acting innocently,— if it could not be found from the evidence that he intentionally placed this man between himself and the expected danger, this rule might apply. But where his very act of placing the plaintiff in the position mentioned may have been a wrong towards the plaintiff, and was done by defendant with the intent of shielding himself from injury, we fail to conceive why the burden of proof is not upon the defendant, rather than upon the plaintiff, to show that without defendant’s act the plaintiff would have been equally injured; and it seems to us that there is where the fallacy of the defendant’s argument lies. In all the cases cited the party proceeded against was doing a lawful act, or was attempting to protect his property or person in a lawful manner, and injury resulted. We are of opinion, therefore, in view of the fact that from this evidence the jury might find that the defendant used this plaintiff as a shield against apprehended danger, of which he knew the plaintiff to be ignorant, that a dismissal of the complaint cannot be sustained. The judgment should be reversed, and a new trial ordered with costs to appellant to abide event. All concur.


author: Van Brunt, P. J.

text:
    Henry Harbeck, Resp’t, v. Sarah K. Pupin et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed November 17, 1893.)

    Release—Construction .
    An instrument executed by a firm creditor, in consideration of the payment of part of his claim, which, in terms, releases the'members of such firm, releases a dormant member, of whose connection therewith he was unaware at the time of its execution.
    Appeal by defendants from a verdict entered for plaintiff, and from an order denying a motion for a new trial.

      George 0. Holt, for app’lts ;" Richards & Brown {J. Tredwell Richards, of counsel), for resp’t.
   Van Brunt, P. J.

This action was brought to recover a balance due upon a promissory note made by the firm of W. H. Whittaker & Co., upon the ground that Frederick K. Agate, the defendants’ testator was, in his lifetime, a member of the firm. The answer consisted, in substance, of a general denial, and an allegation that the defendants’ testator had been released by the plaintiff. For the purpose of the consideration of the question which seems to us to determine this appeal, it will be necessary to state but a few of the many and complicated facts which were brought out upon the trial of this action.

It is claimed upon the part of the plaintiff that the defendants’ testator, Agate, was a dormant partner in the firm of Whittaker & Go., the ostensible partners being W. H. Whittaker, Sandford W. Battershall, and John E. I. Grainger, and that, at the time of the release to be hereinafter mentioned, the plaintiff had no knowledge of the fact that Agate had been a member of the firm, or was a member of such firm at the time of the giving of the promissory note which formed the basis of this action. It has been argued at considerable length by the counsel for the appellants that, there having been no rescission of the release in question, no recovery can be had against the defendants. The respondent meets this argument by the concession that there is no question of rescission in the case; that the plaintiff’s action does not proceed upon any rescission, nor upon any right to rescind, but that it goes upon the theory that, giving to the release its full effect, it did not operate to discharge the liability of Agate on the note, because the release did not, in terms, discharge him, and the intent to discharge the liability of Battershall and Grainger, only, affirmatively appeared on the face of the instrument, and at common law the effect of the release will be limited to the intent. The question presented upon this appeal is whether this position of the respondent, in view of the conceded facts, can be maintained.

It appears that in March, 1886, several months after the failure of W. H. Whittaker & Go., one Henry A. Root, on behalf of Agate, entered into negotiations with the attorneys for the plaintiff, which resulted in the execution and delivery by him of a release, which is hereinafter set out in Ml. The consideration for this release was the sum of $3,000 furnished by Agate, and the delivery of four notes, two of which were signed by Battershall, and two by Grainger, for amounts aggregating $4,500. At this time the plaintiff was unaware that there was any possibility of his having any claim against Agate for the indebtedness of Whittaker & Co. to him, upon the ground that he had been a partner in said firm, or that Root was acting upon his behalf. The release in question is as follows: “Whereas, the late co-partnership firm of W. H. Whittaker & Co., of the city, county and state of New York, are indebted to me, the undersigned, Henry Harbeck, of the city, county and state of New York, in the sum of thirty thousand seven hundred and fifty-four and thirty-three one-hundredtlis dollars ($30,754.33), with interest from the twenty-first day of September, 1885, by virtue of a judgment recovered in the supreme court of the state of New York, held in and for the city and county of New York, in an action wherein said Henry Harbeck was the plaintiff, and the said late firm were defendants ; and whereas, such firm has been dissolved; and whereas, I have agreed with the members of the said late firm of W. H. Whittaker & Co,, other than said W. H. Whittaker, to compound or compromise my claim on them, individually, in respect of the said indebtedness to me of the said late firm s Now, therefore, this agreement witnesseth, that in consideration of the sum of one dollar, and other good and valuable considerations, to me, the said Henry Harbeck, paid by the said members of the said late firm of W. H. Whittaker & Co,, other than the said W. H. Whittaker, at or before the time of subscribing this release, I, the said Henry Harbeck, do hereby, according to the statute in such case made, release, acquit and forever discharge the said members of the late firm of W. H. Whittaker & Co., other than said W. H. Whittaker, and their estate or estates, and that of each of them, of and from all individual liability, claim and demand whatsoever, for or in respect of the said indebtedness to me of the said late firm; provided, however, that this present release is made pursuant to section 1942 of the Code of Civil Procedure, and shall have no greater or other effect than as by the said act and by this release is provided ; and shall not release or discharge said W. H. Whittaker, or his estate, but shall operate to release and discharge all and every person or persons other than the said W. H. Whittaker, of and from any and all liability and obligation growing out of the indebtedness aforesaid. Nothing herein contained shall affect or impair a certain agreement dated August 20, 1885, by which certain claims and demands due the firm of W. H. Whittaker & Co. were to be held in trust for the said Harbeck; all the terms and provisions of the said agreement to remain in force notwithstanding this agreement. In witness whereof, I have hereto set my hand and seal this 18th day of March, 1886. ■ “ H. Harbeck. [l. s.] ”

It is to be noticed that throughout this release there is no mention whatever made that it is to run to the benefit of any particular individuals. By its operative words the plaintiff released and forever discharged the members of the firm of Whittaker & Co., other than Whittaker; and it expressly declares that it shall operate to release and discharge all and every person or persons, other than said Whittaker, of and from any and all liability and obligation growing out of the indebtedness. This language is certainly sufficiently broad to cover all the world, except Whit-taker, and it was certainly so intended by the parties receiving the release. Now, can the plaintiff, after having given a general release to all the world, except one man, and received money and notes as a consideration for such a release, be heard to say that, as he did not intend that it should operate as broadly as its terms provided, therefore it did not release anybody except those persons whom he had in mind at the time of the execution therof ? It seems to us that this question is too plain for argument If there was no release because of a mutual misunderstanding, then, before the plaintiff could withdraw himself from its effects, he was bound to put the other parties in the position in which they were, before he can claim exemption from its terms. The argument of the learned counsel is that at common law the effect of the release is to be lirgited to the intent. But certainly no rule has ever prevailed that it is limited to the intent of only one of the parties.

It is further claimed that because the release did not discharge Agate, and the intent to discharge the liability of Battershall and Grainger affirmatively appeared, therefore it did not operate to discharge Agate. But the difficulty with the respondent’s position in this respect is that, by the very terms of the instrument, all and every person, other than Whittaker, were expressly declared to be discharged. If the plaintiff chose to execute an instrument in the general terms which were employed in the release in question, and he has thereby discharged obligations which he had not in mind at the time of its execution, certainly the party who has been paying for that discharge is not in fault. It is to be observed, upon an examination of that release, that there is not a single word said about Battershall and Grainger. It would seem as though the plaintiff had consented to release all the world, except Whittaker; that he was willing to do so, for the consideration which he was to receive. It is undoubtedly true that he did not know or suppose that he was discharging anybody but Battershall and Grainger ; but he took the risk of that, and it was because of this very general language in the instrument that he got the money which he received. How, having made his bargain, and received the consideration, he claims that, because he did not know that he was giving for the consideration he received as much as he did actually give, he is not to be bound by it. We are of opinion that upon the conceded facts, in the face of the release in question, the plaintiff cannot recover against the defendants; that the terms of the release were broad enough to cover the obligation of the defendants’ testator; and that the consideration was paid in order that he might be released, and, he having relied upon the same, the plaintiff cannot now successfully contend that he did not intend to release him, although, by the words of the instrument executed, be did so release him. The judgment should be reversed and a new trial ordered, with costs to appellants, to abide event. All concur.