author: . G-ray, J.

text:
    The Hanover National Bank of the City of New York, App’lt, v. Sarah F. Blake, Resp’t.

      (Court of Appeals,

      Filed June 5, 1894.)

    1. Debtor and Creditor—Composition—Secret agreement.
    A secret agreement, which induces a creditor to agree to a composition by the promise of a preference, or of some undue advantage, over the other creditors, is avoided by the law.
    3. Same.
    But the composition agreement remains valid and enforceable.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order made November 21, 1892, which affirmed a judgment in favor of defendant entered upon a verdict directed by the court, and also affirmed an order denying a motion for a new trial.
    The action is brought by the payee of a promissory note against the endorser. The facts were not in dispute and were stated by the general term, as follows: Frederick D. Blake and Charles
    Waterman were partners engaged in the dry goods business under the firm name of F. D. Blake & Co. They were indebted to various creditors, including the plaintiff, and, becoming insolvent, executed a general assignment of all their property to James H. Thorp on the 24th day of April, 1888. On the 4th of June, 1888, the creditors of F. D. Blake & Co. signed a composition agreement by which they agreed to take 40 per cent, of their respective claims, to be paid by four notes made by the members of the firm, each for ten per cent, of the claim, two payable in six and twelve months, and two in eighteen and twenty-four months, the latter two indorsed by Sarah F. Blake.
    The Hanover bank, desiring to have the security of Mrs. Blake upon all the notes, asked that she indorse the first two as well as the last two, which she did. This was not known to the other creditors and was a security additional to that provided by the terms of the composition agreement.
    The note in suit is the third of the series, payable in eighteen months, and properly indorsed by Mrs. Blake, in accordance with the composition agreement.
    At the trial both parties moved for judgment; which the court directed for the defendant. At the general term that judgment was affirmed and the plaintiff has again appealed to this court.

      Thomas S. Moore, for app’lt; C. Bainbridge Smith, for resp’t.

       Reversing, 49 St. Rep. 432.

   . G-ray, J.

In the general term opinion the question of law was stated thus: “ Did the secret agreement, by which Mrs. Blake indorsed the first two notes, invalidate the whole composition agreement, so that notes given in pursuance of its terms are not enforceable by the plaintiff ?” The learned justices, finding no controlling authority in this state, determined the question adversely to the plaintiff and upon the ground, in substance, that, as the agreement was fraudulent, the fraud permeated and vitiated the whole composition agreement and disabled the creditor from recovering anything under it. In this view we are not able to agree with them. It may be true that there was no decision in the.' courts of this state in its features so precisely in point, as to compel adherence to its authority and it is true that the view of the general term has support in the decisions of English courts. I think, however, that in our state there are expressions of opinion by eminent judges of this court and by a former very distinguished judge of the supreme court of the city of New York, which rather commit us to a contrary view, and which should commend themselves to us as furnishing a wise and more politic rule, in these cases of compositions by an insolvent debtor with his creditors. The general principle has been long settled in England and here that a secret agreement, which induces a creditor to agree to a composition by the promise of a preference, or of some undue advantage, over the other creditors, is utterly repugnant to the composition agreement, and, from its fraudulent nature, is avoided by the law. The very essence- of a composition agreement is that all creditors come in upon terms of equality ; and that equality would be destroyed, if the secret agreement were given effect. In Leicester v. Rose, 4 East, 372, at p. 381, Lord Ellenborough observed that the principle of all the cases was “that where the creditors in general have bargained for an equality of benefit and mutuality of security, it shall not be competent for one of 'them to secure any partial benefit or security to himself.” In Russell v. Rogers, 10 Wend. 474-479, Justice, (afterwards Chief Justice), Nelson said: “So scrupulous are courts in compelling creditors to the observance of good faith towards one another in cases of this kind, that any security taken for an amount beyond the composition agreed upon, or even for that sum, better than that which is common to all, if unknown to the other creditors, is void and inoperative. It is in the extent of the operation of the principle, which was thus early asserted, that we will find the divergence of judicial opinions between English judges and those of this state. It is curious to observe that though Leicester v. Rose was relied upon as the basis of authority for their conclusions, the application of the doctrine of that case has been different in each country. Leicester v. Rose was decided in 1803. Its facts were that several creditors of the insolvent refused to sign, unless collateral security, which was to be given for the first two installments of the composition payment, should also be given for the last two. The defendant agreed to procure this additional security, and, not having .done so, the action was brought to enforce the agreement. Lord Ellenborough stated the question to be, whether any legal effect could be given to such an agreement, which gave to some creditors a better security than to others, and he held that it could not, as it was a fraud upon the rest of the creditors. The case of Howden v. Haigh, 11 Ad. & Ellis, 1033, was decided in 1840 and was a suit upon composition notes. By a secret agreement betweep the plaintiff and defendant that the latter should indorse to him a bill, accepted by a third party, in order to give him a preference beyond the other creditors, the former had been induced to sign the composition deed. It was held that he could not recover. Lord Denman, relying upon Leicester v. Rose and Knight v. Hunt, held that every part of the transaction was avoided by reason of the deceit upon the other creditors. Littlendale, J,, while agreeing with him that the fraud extended over jke whole, remarked, rather significantly, “it is possible that the plaintiff may be entitled to sue for the original debt” The case of Knight v. Hunt, 5 Bingham, 432, referred to by Lord Denman, if we are to regard the language of the opinion, did not expressly decide that the whole transaction was avoided. In that case the plaintiff had refused to accede to a composition of ten shillings in the pound, until a brother of the debtor agreed to supply him with coals to an amount in value equal to half the debt. The coals were furnished, but the notes remained unpaid and the plaintiff broughtupon them this suit. Best, 0. J., stated the principle that the judgment of the creditors is influenced by the supposition that all are to suffer in the same proportion, and briefly concluded with the remark: “Here the plaintiff has had his ten shillings in the pound in coal, and he cannot have it. again in money.” In Mallalieu v. Hodgson, 16 Ad. & Ellis (N. S.), 689, decided in 1851, Erie, J., held that “where any creditor, in fraud of the agreement to accept the composition, stipulates for a preference to himself, his stipulation is altogether void, hot only can he take no advantage from it, but be is also to lose the benefit of the composition." In this ruling he relied upon Leicester v. Rose and Howden v. Haigh. The plaintiff there was seeking to recover for the balance of his original debt, after allowing for the amount of the composition and the value of a preference. It was his claim that the composition deed had not released the debt to him; because he had been induced to believe that he alone was preferred, whereas other creditors had also been secretly preferred. It will be observed that in Mallalieu v. Hodgson it was unneces; .iry to decide whether the plaintiff had lost the benefit of the composition. The question was whether the plaintiff could defeat the effect of the composition agreement, by the plea that he had been deceived into supposing that, lie was the only creditor secretly preferred., • As an expression of judicial opinion, it must, however, be accorded its weight evidencing the continuance of the authority of Howden v. Haigh. That case furnishes the sole basis of authority, on which subsequent decisions and text writers have rested the doctrine that the fraud in the secret agreement with the creditor so vitiates the whole transaction of composition, as to disable him from recovering even the amount of the composition. Leake on Contracts, 768; Cliitty on Contracts, 694; Waid’s Pollock on Contracts, 289. I say the sole authority, because Leicester v. Rose did not go so far as that and Howden v. Haigh was' an extension of the principle, which was supposed to be justified by Lord Ellenborough’s decision in the former case. The doctrine of Ilowden v. Ilaigh, it may be observed, did not go wholly unquestioned in England; as may be inferred from the remarks of Littledale, J., in that case, which I have quoted, and of Baron Aldcrson in Davidson v. McGregor, 8 M. & W. 763 ; who said, he was “ alarmed at the extent to which that decision goes.”

In this state, with the case of Leicester v. Rose before him, Judge Duer, in Breck v. Cole, 4 Sandf. 79, formed quite a different conclusion, as to the extent of the effect of a secret agreement, which attempts to secure to a creditor an advantage over the other creditors. Breck v. Cole was an action upon a promissory note, secretly given to the plaintiff, in addition to the composition notes, as an inducement to him to agree to the composition. Judge Duer in his opinion comments upon the fraudulent nature of the agreement, in its effect upon the other creditors; observing that “ it is in all cases the concealment of a fact, which it was material for them to know and the knowledge of which might have prevented them from assenting to the composition "" “ Every composition deed is in its spirit, if not in its terms, an agreement between the creditors themselves, as well as between them and the debtor. It is an agreement that each shall receive the sum, or the security, which the deed stipulates to be paid and given and nothing more; and that, upon this consideration, the debtor shall be wliolly discharged from all the debts then owing to the creditors who sign the deed.” The learned judge then reverts to the violation of the equality iwiong creditors worked by secretly giving additional security and mates this conclusion: “ Hence, either the composition deed itself, * * * or the private agreement, which seeks to evade and, if valid, would defeat it, must be set aside, and. sound policy and the principles of good faith require that the latter course should be followed. It is perfectly just that every creditor, who signs a composition deed, should be estopped from setting up any private agreement repugnant to its terms, or inconsistent with its intention and spirit and * * every private agreement * * * is of this character and consequently, * * * every security, which is the fruit of such an agreement is illegal and void.” He reviews the early decisions in the courts of England and of this state, and concludes that “it is the cjear and inevitable result of the decisions that where a composition is made with creditors, every security given to a particular creditor, not provided for in the terms of the deed, and not disclosed, is void as a fraud upon the creditors from whom it is concealed.” The importance of this expression of judicial opinion should,, not, in my judgment, be underestimated. It was delivered by one of the most eminent judges in this state and was concurred in by his associates, Judges Mason and Campbell. It does not appear from the opinion that Howden v. Haigh was before him; although it had been decided ten years before. But whether his attention was called to it or not, the learned judge’s opinion was formed alter considering the same early English cases, as were considered by Lord Denman in Howden v. Haigh and by Justice Erie in Mallalieu v. Hodgson. Judge Duer limited the effect of the fraudulent secret agreement to the nullification of any rights or advantages attempted to be gained under it and regarded it as something quite separable from the composition agreement itself. From all the early cases in England and in this state the inference from the decisions is. not that the composition agreement is avoided, but, as Justice Nelson stated it in Russell v. Rogers, “ the security taken for an amount beyond the composition agreed upon, or even for that sum, better than that which is common to all, * * * is void and inoperative.” So in Fellows v. Stevens, 24 Wend. 294, Justice Cowen held that the law would set ‘aside “ all secret terms made by the creditors with the debtor, more favorable to the former than is allowed to- the other creditors.” It is the secret agreement itself which is fraudulent and void. Bliss v. Matteson, 45 N. Y. 22; Harloe v. Foster, 53 id. 385. And that is all that I think Leicester v. Rose decided. White v. Kuntz, 107 N. Y. 518: 12 St. Rep. 297, is one of the latest cases, in which this court has considered the effect of composition agreements. In that case the plaintiff had signed a composition agreement; by which he agreed with other creditors of the debtors to accept one-third of the indebtedness due them in four notes, to be indorsed by the father of the debtors. To induce the plaintiff to sign this agreement, Kuntz, the father of the debtors, secretly agreed to purchase of him the composition notes within a specified time, and to pay $10,000; the composition notes aggregating only about $6,000. This secret agreement Kuntz refused to perform; alleging thakitwas null and void. Thereupon plaintiff brought an action; afieging these facts in his complaint and, also, that several other creditors had been induced to sign by a secret agreement to pay them a larger percentage than the one-third provided ior in the composition agreement and, upon the ground that that agreement was void as to him, demanded its cancellation and that of the notes delivered under it and a judgment against the debtors for the amount of the original indebtedness. Demurrer to the complaint was sustained below and in this court the judgment was sustained. It was held that the agreement between plaintiff and Kuntz, the debtor’s father, was fraudulent and could not be enforced, and that the composition agreement as to all the innocent parties was avoided. As the plaintiff was not an innocent party; but had, himself, taken a fraudulent advantage, he could not set up the fraud of the creditors. The opinion discusses what were his rights. It was said that he had not forfeited all claims- upon his debtors; that “he must have either the composition notes, or his original notes;” that he could not avoid the composition agreement as to himself and enforce his original notes for their full amount, as that would unjustly result in an advantage over the other creditors and “he should be held to the composition.” “His only remedy,” it was said, “ against the defendants is upon the composition notes.”

Judge Earl, in delivering the opinion in White v. Kuntz, cited the English case of Mallalieu v. Hodgson, supra, as an authority in point; but that he did not adopt the opinion in all its expressions is evident; for he held that there was “ no ground upon which he ” (the creditor in the case before him) “ can be deprived of all remedy.” 0

It is very plain from the opinion in White v. Kuntz, that it is the secret agreement, by which the creditor receives an undue advantage, which is deemed to be avoided. It was so considered, again, by Judge Andrews, in Meyer v. Blair, 109 N.Y. 600; 16 St. Rep. 380; who, referring to White v. Kuntz, as authority for the statement that a collateral agreement is void in composition cases, which secures to one creditor an advantage over others, said “ the court refuses to enforce the secret bargain and confines the creditor, who is a party to the fraud, to a remedy to recover the sum which, by the terms of the composition, he agreed to accept." In Solinger v. Earle, 82 N. Y. 393, the facts were that a third party had given his note for a portion of the insolvent’s debt to the defendants, to induce them to agree to the composition. Having paid the note to a transferee thereof, be brought an action to recover back from the defendants the money so paid. It was held that the action could not be maintained; for, though the transaction was a fraud upon the other creditors, the parties were in pari delicto. Judge Andrews, remarking that fair dealing condemned such a transaction, said : “ If the defendants here were plaintiffs seeking to enforce the note, it is clear that they could not recover.” Inasmuch as the note sued upon was for an additional amount, beyond the amount of the composition agreement, the remark of the learned judge was in line with all the authorities. He held the secret agreement was void and could not have been enforced. The case is in no wise in conflict with White v. Kuntz, or Meyer v. Blair.

If we should say that the fraud of the secret agreement mads by the creditor operated to avoid the whole transaction of compo' sition, the result would be to leave him with the original indebtedness unreleased. If the composition agreement, by which the debt was compromised, is to be deemed nullified by the fraudulent transaction, I do not see why the creditor would not be at liberty to pursue the original debt; a view which Littledale, J.,' regarded as probable in Howden v. Haigh.

It would certainly seem to be the logical outcome of the proposition .asserted below that, if the composition agreement has been avoided, it has become inoperative as an agreement for any purpose. We assert a wholesome rule and one which works a just result, if we hold that the secret and fraudulent agreement, itself, is illegal and is inoperative to confer any rights or advantages upon the creditor. Perfect equality is to be maintained among the creditors. It was thought below that the secret agreement and the composition agreement constituted but a single and indivisible transaction or agreement. I am not prepared to accede to that proposition; though it has support in some of the English cases referred to. It seems to me the case falls easily within the rule, which permits a severance of the illegal from the legal part of the covenant. Pickering v. Ilfracombe R'way Co., L. R. 3 C. P. 235, 250; United States v. Bradley, 10 Peters, 343-360.

In Mallan v. May, 11 M. & W. 653, the plaintiffs, who were surgeon dentists, agreed to take the defendant as an assistant and to instruct him for a term of years and he agreed at the expiration of that term not to practice his profession “ in London or any of the towns in, or places in, England or Scotland, where the plaintiffs might have been practicing.” It was held that the covenant as to not practicing in London was valid, and that not to practice elsewhere was illegal; but that the valid part was not affected by the illegality of the other part. Here the agreement with other creditors for a composition was lawful and valid, (unless they should elect to rescind it upon the discovery of the secret agreement, an element not present); but the agreement for, and the giving of, additional security was unlawful and void. Is there any reason why the bad may not be rejected and the good retained? If the alternative is, as it presents itself to my mmd, that the composition agreement shall stand as a release of the plaintiff’s original demand; or that it shall fall and leave the plaintiff at liberty to recover the original debt, I am for upholding it and I fail to see why the legal part of the transactions had with it cannot be severed from the illegal part. We should be careful, in our desire to punish the harsh and unscrupulous creditor, who presses his debtor and bargains for an advantage over other creditors, by deprivation of legal rights and remedies, that we do not go too far and lay down a rule which may result unjustly in other ways. It ought not to be possible that through his fraud he may be reinstated in his original position as a creditor for the whole sum due. The operation of a secret agreement is such that the other innocent creditors may, because of the fraud of their debtor, elect to refuse to be bound by their agreement of composition with him. If the secret agreement is executory they may not so elect, and may rely that the creditor, secretly seeking to obtain some promise of advantage over them, will be prevented from enforcing it and 'from gaining anything by his fraud. Its illegality is a perfect defense in the hands of the promisor. The composition agreement is one thing, as an agreement between all the creditors to release some part of the insolvent’s indebtedness to them, upon terms equal as to each; and the secret fraudulent agreement with one or more of them, is a stipulation which, from its inception, was unlawful and which the law annuls. Bliss v. Matteson, 45 N. Y. 22. It was also suggested in the opinion below, in support of the rule there asserted, that if it did not obtain, there would be an inducement to an unscrupulous creditor to commit a fraud; for his only risk would be to lose his additional security, while assured of the amount of his composition. To a certain extent that may be true ; but, on the other hand, it may be suggested that, if it were the rule, the insolvent debtor would have the inducement to ensnare his creditor into some secret arrangement and thus, by trick and device, to leave them wholly remediless; disabled to recover the amount of the composition and disabled from pursuing the original debt which the composition agreement released.. It seems wiser simply to regard the secret agreement as one which the law avoids for its fraud. The creditor makes it with the risk of its worthlessness, if repudiated, and the debtor makes it with the peril that its discovery will furnish cause for his other creditors to avoid the composition agreement. The conclusion reached is the result of a careful examination of the authorities and the doctrine they teach, and it is in accord with a wiser policy. It must not be forgotten that the defendant’s contract of indorsement is within the terms of the composition agreement, with respect to the note in suit. We know nothing of the fate of the earlier notes, the indorsement upon which by defendant was secretly and fraudulently procured to be added. She had a perfect defense to the enforcement of her contract. We are only concerned now with the question of whether the plaintiff shall have the amount of the composition; notwithstanding it may have been agreed secretly that it should have some better security for the payment of some of the composition installments. This question, for the reasons stated, should be answered in the affirmative, and. therefore, the judgments below should be reversed, and a new trial ordered, with costs to abide the event

All concur, except Andrews, Gh. J„8 and Peckham, J„, dissenting.

Judgments reversed.


source: Caselaw Access Project

author: Peckham, J.

license: Public Domain

text:
    Edward W. Hankins, App’lt. v. The New York, Lake Erie and Western Railroad Company, Resp’t.

      (Court of Appeals,

      Filed, June 5, 1894.)

    1. Master and servant—negligence.
    The master will bg held liable for negligence in respect to such acts or duties as he is required to perform as master, and without regard to' the rank or title of the agent whom he intrusts with the performance.
    2. Same—Rules.
    The fact that the master has promulgated proper rules and regulations for the performance of the act or duty by its agent, does not relieve him from liability, in case such agent disregards them.
    3. Same—Train dispatcher.
    The failure of a train dispatcher to perform his duty in ordering the movements of railroad trains renders the company liable for injuries to the employees resulting therefrom.
    Appeal from judgment of the general term of the supreme,,, court in the fifth judicial department, entered upon an order made January 18, 1893, which affirmed an order denying a motion for a new trial and .affirmed a judgment in favor of defendant entered upon an order non-suiting plaintiff on trial at circuit.
    This was an action to recover damages sustained by plaintiff while employed by defendant as a fireman on one of its freight trains in a collision between that and another train.
    The facts, so far as material, are stated in the opinion.

      W. H. Henderson, for app’lt; James H. Stevens, for resp’t.

       Reversing 50 St. Rep. 937.

   Peckham, J.

The non-suit in this case was granted on the ground that, assuming the negligence of the train dispatcher the plaintiff cannot recover because it was the negligence of a fellow-workman. Whether the train dispatcher bore that relation to the plaintiff is in truth the only question in the case.

• The facts are not complicated, and those which w¿ regard as material are as folllows: The divisioñ upon which the accident happened extends from Dunkirk on the west to Hornellsville on the east. The plaintiff was a fireman on a freight train (number 340), which on the 19th of October, 1887, had started from Dayton and arrived at Salamanca, a station on defendant’s road and within the above-named division, early in the morning on its way east towards Hornellsville, but the train had left Day ton'and arrived at Salamanca several hours behind its schedule time, and its movements since leaving Dayton, had been entirely controlled by special telegraphic orders from the train dispatcher at his office at Hornellsville. .

At 7r57 of the day mentioned the engineer and conductor of this train received while at the Salamanca station an order by telegraph from Hornellsville and signed by the division superintendent and the train dispatcher, which order directed them to “meet trains 341, 339 and 349 at Carrollton ahead of train 348.”' Carrol ton was a station a few miles east of Salamanca. The train consisted of 113 cars and was about half a mile in length and it started to go east as far as Carrollton under the above order very soon, or within a few moments after the order, was received. The west-hound train number 341 had arrived at Carrollton several hours behind its regular time, and it was also being run by special telegraphic orders from the train dispatcher’s office at Hornellsville. While at Carrollton on its way west, the conductor and engineer of this train received their telegraphic order at 8.43 A. ir., which directed them to ‘‘meet train 334 at Carrollton, 348 at Salamanca, not pass Salamanca without orders.” It was the duty of the conductor and engineer of this train, upon receipt of the order, to move their train west to Salamanca. This they at once proceeded to do.

Neither the engineer nor the conductor has any voice in running a train by special order; they are simply charged with the duty of carrying out the orders that come to them from the train dispatcher’s office. These orders to the conductors and engineers of the trains numbers 340 and 341 were at once attempted to he carried out by them, and in consequence thereof the two trains came into collision not far from Carrollton and between 9:05 and 9:10 A. M.

The plaintiff was fearfully injured, his leg being almost torn from his body and he pinned down between the engine and tender and very badly scalded by the hot water from the boiler of his engine. Amputation near the thigh was soon after performed, and the plaintiff, as might be assumed, suffered great agony from the injury and is rendered a maimed and wrecked individual for the balance of his life. There is no question of contributory negligence in the case, and it cannot be contended that the plaintiff was at the time of the accident engaged in anything other than an honest and careful performance of his duty. If these orders were negligently given, the sole question as to defendant’s liability becomes one of law. There was enough evidence as to negligence on the part of the train dispatcher in the giving of the orders to require the submission of the question to the jury, provided the defendant ought to be held liable for his negligence. It frequently becomes very difficult to determine whether the particular act in any case is that of the master in his character as such, or is only that of a mere fellow-servant. It is not a question as to the rank of the individual who gives the order or performs the act. The question is one as to the character of the order or act, whether it is one which is given or performed as an order or act of the master in his character as such, or only as an order or act delegated by the master to another and performed by such other as an employee. The rule as to the liability of the master for the act of a servant is well known. Church, Oh. J., said in the Flike case that the master must be held liable for negligence in respect to such acts or duties as he is required to perform as master, and without regard to the rank or title of the agent whom he has intrusted with its performance. Flike v. Boston & A. R. R. Co., 53 N. Y. 549. This language was repeated in Crispin v. Babbitt, 84 N. Y. 516, where the liability of the master for the negligence of his servant, by which another servant has suffered injury, was said not to depend upon the doctrine respondeat superior, but upon the omission of some duty of the master which he has confided to such inferior" employee. If the act omitted were of the kind which the master owed to the employee the duty of performing, he would be responsible to the employee for the manner of its performance. It is not a question of rank among the different employees. The rule thus laid down has been since frequently approved in this court. Slater v. Jewett, 85 N. Y. 62; Cullen v. Norton, 126 id. 1; 36 St. Rep. 359. Its application to a particular case is sometimes difficult, and the boundary line between an act of the master and an act of the employee is sometimes quite vague and shadowy. In this case the evidence would seem to be quite conclusive that the defendant had fully discharged the duty which it owed its employees in the way of establishing and promulgating appropriate and sufficient rules and regulations for the government and operation of the various trains upon its road, and its furnishing general time tables pertaining thereto. Whether the train dispatcher violated one or all of/such rules is not material in the view we take-of the case, because the defendant had not performed its whole duty in promulgating rules, nor is a defense made out when it is shown that if the train dispatcher had obeyed the -rules the accident would not have occurred. If the defendant owed a' duty as master to give correct orders to these trains, or at least to take due and reasonable care to give them, the failure to perform that duty is the failure of the master in his character as such, although-he intrusted the performance of the duty to the train dispatcher.

These trains were being run without regard to their ordinary time tables; they were several hours, late, proceeding in opposite directions, and each was approaching the other in entire ignorance of the other’s whereabouts. Both were necessarily dependent upon the special orders they received from Hornellsville. As was said in the Slater Case, supra, the master had the right to vary from the regular time schedules laid down for these trains. It was part of the details incident to the operation of the road, but when a variation, or, in other words, when a special time table is made out for two trains by which they are to run, it is the duty of the master not alone to take reasonable care that the alteration shall be made known to the parties interested, but also to take reasonable care that the variation ordered and by which the trains are run shall not necessarily or probably lead to disaster when obediently carried out. Reasonable care in originating and formulating the order is necessary and is the duty of the master. When the train dispatcher originates and promulgates such oiders as were given in this case, he is acting as the master, or, as it is said, his alter ego, and the master is liable for the negligence of the agent he has employed to do his, the master’s particular work.

' In this case it appears that the train dispatcher had his office at Hornellsville for the whole division, and that while he used the name of the division superintendent in giving orders for themovement of trains, jet by the rules they were essentially bis orders and signed with his initials in addition to those of the superintendent. It is not claimed that the division superintendent was even bound to know about these movements or special orders. There ,were three dispatchers at Hornellsville, but there was only one man at a time on duty, and his duty was for eight hours, and while on duty, by a rule of the company, no order could be issued by any other dispatcher. In this way provision was made for full knowledge by each dispatcher of everything going on - on his division as to the movement of trains during the time when he was on duty. It is said the accident resulted from a disobedience of these rules, in that the dispatcher, who was about to relinquish his post, sent, at the request of his successor and in his name, the order to the east-bound train at Salamanca, and the successor, forgetting -the transmission of such order at his request by the preceding dispatcher, gave the order to the train at Carrollton and bound west, .which caused it to move forward and encounter the other train.

If the successor of the train dispatcher, instead of asking the one who was just off duty to send the order to the Salamanca train, had sent it himself, as the rule required, all that can be said is that there might have been more probability of his remembering" it, but it cannot be said that his failure to obey the rule in such case was the cause of the accident. The same want of memory might have existed in either case. I do not, however, lay any weight upon this fact, because, whether the train dispatcher did or did not obey a rule of the defendant, he was acting when the orders were given on this subject as the master and was discharging the master’s duties, and if he negligently performed them the master must be held liable therefore. We do not say this duty went further than to use reasonable care, measured by the gravity of the interests at stake, to give originally correct orders. If they were correct, as originally given, and subsequently, through the negligence of some employee, they were incorrectly interpreted, or copied, or mistakenly repeated, or delivered to the wrong person, in these and in many other supposable cases there might, perhaps, be reason for the application- of the doctrine as to negligence of a co-employee. It is not so as the case appears here.

In the Flike Case, supra, the accident happened because of the absence of a third, brakeman on a train sent out from East Albany. The company had provided a man at that station called a head conductor, whose duty it was to make tip the trains, and hire and station the bralcemen, and on account of one of the brakeman oversleeping himself the train went out without a sufficient number of bralcemen. The court held the company had not discharged its duty to send out only a properly equipped train when it provided a head conductor and made rules for his presence there and gave to him a superintendence over the trains. The defendant owed a duty to the employees to send out only such a train, and that duty was not complied with bv adopting rules governing such a case. It is also the duty of the company to use care in the furnishing of proper cars and machinery, but the duty is not performed by adopting a rule pro- . viding for proper inspection and in furnishing proper persons to perform such inspection, so long as they negligently omit to inspect. Proper inspection of the equipment and machinery of a train is itself part of the duty of the company. Bailey v. Rome, W. & O. R. R. Co., 139 N. Y., 302; 54 St. Rep. 550.

These cases make it plain that whenever the act is that of the master.or the duty to be performed is particularly his duty, the liability resting upon'him for the proper performance of the act or duty is not shifted by the adoption of rules or regulations providing for the performance of the act ,or duty by the agent of the master.

Nor is the holding that a train dispatcher in the dispatch of trains performs for the master a duty which it owes as such, a new departure in the branch of the law under discussion. While the cases cited below do not necessarily proceed upon that basis, yet it is plain that it was in all of them regarded as an indisputable proposition so far as a train dispatcher acted in ordering the movement of trains. In Slater v. Jewett, supra, it was assumed that the order of the train dispatcher was the act of the" master, but it'was held that the order was in fact correct and the injury happened from a negligent performance of duty by subordinate servants who were co-employees of plaintiff’s intestate, 85 N. Y., at pages 66, 70 and 71. The same holds true in the case of Sheehan v. N. Y. C. & H. R. R. Co., 91 N. Y, 332 at 337, and Judge Danforth there says that no servant takes the risk of an injury by the very act of the master himself. In Dana v. N. Y. C. & H. R. R. Co., 92 N. Y., 639, a judgment of non-suit .in an action brought to recover damages for an injury received in the same accident in which Sheehan, 91 N. Y., supra, was injured, was reversed in this court, and upon the same reasoning employed in the Sheehan Case. And in Sutherland v. The Troy & Boston R. R. Co., 125 N. Y., 737, more fully in 35 St. Rep. 853, this court assumes in the opinion there delivered that if the accident occurred from the omission of the train dispatcher at Troy to exercise proper care to notify the train, a case was made out on the question of defendant’s negligence.

I think this is a fair and wholesome rule, fair to the master, while at the same time affording some protection to the employee. The defendant ought not to escape liability for negligently issuing as master and in the course of the performance of its duty as such-to its employees, an improper order, and whether it has done so should be submitted to the jury.

I have looked at the various cases cited by the learned counsel for the defendant, and I have fbund none in this court which conflicts with these views. It is not necessary to cite each one, and criticise it in detail. It is sufficient to say they do not conflict with our decision in the case at bar.

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

All concur, except Gray, X, not voting.


text:
    Phœnix Bridge Company, App’lt, v. The Keystone Bridge Company, et al., Resp'ts.

      (Court of Appeals,

      Filed June 5, 1894.)

    ■Contract—Illegality—Relief.
    Where the relief, sought in an action, was that the defendants be restrained from interfering with plaintiff’s rights in an association and from forfeiting its interests in the guaranty fund, but it did not appear that plaintiff at any time during the trial repudiated or disaffirmed the agreement or claimed to recover back the money paid because of its illegality, though both parties conceded on the trial that it was illegal for tire reason that it was a combination to enhance prices, the refusal of the trial court to grant plaintiff any relief, so far as this action was concerned, because it was a proceeding in affirmance, and not in repudiation of the contract, was proper. •
    Appeal from judgment of the general term of the supreme ■court in the first judicial department, entered upon an order made March 17, 1898, which affirmed a judgment in favor of defendants entered upon an order dismissing the complaint on trial at special term.
    This action was brought by the plaintiff against certain individuals and corporations with whom it had formed an association, called the American Bridge Manufacturers’ Association, for the purpose of having a, resolution of the association assessing the plaintiff the sum of $88, 202 78, adjudged unlawful and void, and for the further purpose of having the court determine what amount, if any, was due as between the plaintiff and the association, and to restrain the expulsion of plaintiff from the association, or the enforcement against it of the penalties in the association agreement contained.
    The provisions of said agreement and the facts, so far as material, are stated in the opinion.

      Delos McCurdy, for app’it; John E. Parsons, for resp’ts.

       Affirming 51 St. Rep. 936.

   Peckham, J.

The parties to this action, excepting the individual defendant Eckert, entered into an agreement between themselves by which they formed what they termed the “ American Bridge Manufacturers’ Association,” which had for its object the promotion of harmony among the bridge manufacturers of America and the carrying out of the provisions of the agreement then entered into. The agreement provided that each of the parties should pay into a common fund a certain amount per pound on all iron work made and sold by them respectively during the previous calendar month, with exceptions therein particularly stated. The payments made by the parties were to form a guarantee fund until its total amount should be $260,000. First payments were made in cash by the parties in proportions specified in the agreement, the proportion of the plaintiff being 16 per cent, of the total of $52,000. After the guarantee fund had reached the above-named amount the surplus assets were to be distributed among the members each month after deducting expenses and in proportions to be arrived at in a manner pointed out in the agreement

Provision was made for referring disputes and other questions arising from carrying out the agreement, to a commissioner, who was to be appointed in a stated manner and who was to have power to hear and decide such matters as were under the agreement referred to him, with the power to any party to appeal to the executive committee and then to the association as a body and obtain from it a decision which would be final and binding.

Provision was also made in the agreement for. the voluntary withdrawal of any party from the association upon notice, and if notice of such intended withdrawal were received and the consent of a majority of the members of the association obtained, the withdrawal became absolute at a stated time thereafter. Upon such withdrawal the party withdrawing toolc his proportion of the guarantee fund, the amount of such proportion being arrived at in a certain manner specified. If a party were to withdraw without the proper consent, then' he forfeited one-fifth of his share in the guarantee fund, while if he were expelled under certain conditions the party would forfeit alibis right to the guarantee fund. The individual defendant Eckert was made the commissioner as provided for in the agreement. The association was formed in April, 1887, and under the provisions of the agreement the parties to it paid their monthly dues for some time.

Disputes subsequently arose between them, and to such an extent were their differences carried that 'the plaintiff commenced this action in January, 1890.

The complaint alleges the execution of the agreement between the parties and states that the plaintiff has ever since such time fully performed and kept all the covenants and provisions thereof. It is then alleged that the plaintiff had a contract for manufacturing certain iron work and setting it up for the elevated railroad in Brooklyn, and that by the true meaning and construction of the agreement the plaintiff was exempt from the payment to the association of any percentage on the amount of the iron manufactured and sold under that contract with the railroad. In substance it was shown by the further allegations of the complaint that, this claim was not allowed by the association and that the complaint that this claim was not allowed by the association and that the commissioner and the association itself had improperly and in violation of the provisions of the agreement undertaken to determine that the plaintiff owed the association an amount of percentage on this iron in question of over $30,000. That in arriving at this determination the association had failed and refused to give plaintiff an opportunity to be heard, apd that the proceedings of the defendants in refusing the plaintiff’s claim for exemption were had in pursuance of an unlawful undertaking between them by which they were to compel plaintiff to pay these dues, although they were not properly chargeable to plaintiff under the agreement, and that in the event of the plaintiff’s refusal to pay the same it should be expended and its share in the guarantee fund forfeited. The plaintiff desired ■ to have the question of its liability to pay the dues to the association, determined ■ by some properly constituted tribunal after a full and proper hearing had been afforded the plaintiff.

The amount of the guarantee fund was at the commencement of the action about §250,000, and plaintiff's interest therein about $40,000. Unless the dues declared to be payable to the association were paid within ten days from the time of notice so to do, the defendants threatened to expel the plaintiff from the association without legal cause and to declare all its rights in the guarantee fund forfeited and to divide up such fund among themselves as members of such association. The plaintiff had given notice of withdrawal from the association in accordance with the provisions of the agreement, but the membership would not terminate under its provisions until a year from the notice of withdrawal, which period had not elapsed at the time of the commencement of this action. There were some other allegations in the complaint which upon the question discussed it is not important to notice. The plaintiff asked in its prayer for relief that the resolutions and determinations of the association upon the assessment of the dues payable to it from the plaintiff should be decreed to be unlawful, and that the court should determine what if any amount was due the association from the plaintiff, and what amount from the association to the plaintiff, and that defendants should be enjoined from enforcing any penalties against plaintiff and from interfering with its rights in the association and from forfeiting its rights in the guarantee fund and from distributing the same. The complaint also prayed for a temporary injunction restraining defendant as above mentioned. The answers of the various defendants, while admitting the execution of the agreement and the formation of the association under it, and the payment of the monthly dues and the existence and extent of the guarantee fund, denied that there had been any improper act on the part of the defendants or the association in regard to the plaintiff, and alleged that it had been regularly and fully heard in regard to its claim for exemption, and a proper and regular decision had been rendered by the commissioner and the association, and that it was in accordance with the provisions of the agreement. They also denied any unlawful or improper agreement in regard to expelling the plaintiff or the forfeiting or division of the fund in question.

Upon these pleadings the parties went to trial. Certainly, up to the time of the trial, there is nothing appearing upon the record which shows any attempt at a disaffirmance or repudiation of the agreement under which the association was formed. I fail to find aiy proof that the plaintiff repudiated or disaffirmed the agreement at any time daring the trial. Ho part of the evidence is returned on this appeal, and we can only form a surmise as to its character by looking at the various requests to find facts made by the different parties and their proposed conclusions of law therefrom. The inference from reading these requests is that on the trial evidence, was given upon the issues made by the pleadings, and upon such evidence the plaintiff asked findings which showed that it had not had an opportunity to be heard before the commissioner as provided for in the agreement, and that the association had not given plaintiff any such opportunity, and had made no valid decision upon the matters in dispute between plaintiff and such association. The mere fact that plaintiff and defendants both conceded on the trial that the agreement was illegal, because it was a combination to enhance prices, is very "far from showing, or even tending to show, that the plaintiff disaffirmed its provisions as between itself "and the other parties thereto, or that it based its claim to relief because of the defendant’s violation of its provisions by reason of which the rights of the plaintiff were jeopardized.

The conceded illegality of the contract is entirely consistent with the claim made by the plaintiff that the defendants had been guilty of a violation of the provisions thereof in the particulars alleged in the complaint. Whether in such a case courts would grant relief is another question. What I assert is that the plaintiff does not show an affirmance of this agreement and a demand to recover back its money on that ground when it serves such a complaint as the one in this action and then on the trial simply concedes that the agreement, is illegal as being a combination' to enhance prices. Notwithstanding such concession it is plain that evidence was given on the subject set forth in the complaint and in regard to the actions of the defendants in refusing a proper hearing and in making an alleged improper decision, and it is plain that a judgment was sought for the relief demanded in the complaint, upon the ground that plaintiff had proved a violation by the defendants of the provisions regarding hearings as alleged by plaintiff in its complaipt. In truth it is difficult if not impossible to reach any other opinion from a perusal of the record.

The refusal of the trial court to grant plaintiff any relief because, so far as this action is concerned, it was proceeding in affirmance and not in repudiation of the agreement was, therefore, •correct.

There was a proposed conclusion of law on the part of the plaintiff which asserted that the agreement was void and that as such it could furnish no legal ground to justify a forfeiture of plaintiff’s rights or property to the use or for the benefit of the other members of the association formed by the agreement. This proposition does not show the plaintiff as disaffirming the agreement. It only shows that among various claims the plaintiff denied the defendants’ right to forfeit the plaintiff's property and that it based such denial on the ground that the agreement was-illegal. The other findings requested by plaintiff show conclusively that its ground for relief was the alleged violation of the agreement by the defendants.

The ground stated in the complaint is totally at war with the one now argued by the plaintiff’s counsel, and we cannot see that the latter ground was even taken on the.trial. In affirming this judgment we do not intend to pass upon the question of the alleged right of plaintiff to disaffirm and repudiate the obligations of this so-called executory or continuous agreement, and in a proper action to recover back the moneys it has paid under it. That question can better be determined after it shall have been presented in an action commenced upon that view of the law, and when all parties will come prepared to try that single question on proper pleadings and in an appropriate manner. We can only say that in this record it appears that the plaintiff did not proceed upon any principle oE a disaffirmance of the agreement, and the relief sought was not appropriate to that theory of its cause of action.

The judgment should.be affirmed, with costs, but to avoid any plea of res adjudícala by reason of this judgment, it should be affirmed without prejudice to the commencement of an action by plaintiff, if it be so advised, to recover back moneys it has paid to the association, on the ground that the agreement forming it was illegal. All concur.

Judgment accordingly.


author: Bartlett, J.

text:
    Charles E. Stokes, App’lt, v. Henry Weston, et al., Resp’ts.

      (Court of Appeals,

      Filed June 5, 1894.)

    1. Will—Constbuction.
    Where there is a devise to one person in fee, and, in case of his death, to another, the contingency referred to is the death of the first named devisee during the lifetime of the testator, and, if such devisee survives the testator, he takes an absolute fee, unless there is some language in the will indicative of a different intention on the part of the testator.
    2. Same.
    The law favors equality among children in the distribution of estates, and, in case of doubtful construction, it selects that which leads to such a result.
    3. Same.
    The law favors the vesting of estates.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, entered upon an order made June 23, 1893, which reversed a judgment in favor of defendant, entered upon a decision of the court on trial at special term.
    The nature of the action and the facts, so far as material, are stated in the opinion.

      John D. Teeler, for app’lt; Frank S. Coburn, for resp’ts.

       Reversing, 53 St. Rep. 544.

   Bartlett, J.

This is an action for partition and seeks, as incidental relief, a construction of the will of the late Samuel Stokes, of Auburn, Cayuga county, who died on the 24th of October, 1889. The testator left him surviving as legatees and devisees under his will his two sons, Charles E. Stokes and Alfred Stokes; a daughter, Clara McGee: a widow, Eliza Stokes, and two infant grandchildren, Henry Weston and Porter Weston, the children of his daughter Clam McGee. At the time of the testator’s death his two sons were unmarried. The material portions of the will read as follows, viz :

“First. 1 give, bequeath and devise to my wife, Eliza Stokes, in case she survives me, the use of all my property for and daring the term of her natural life, which is in lieu of her dower and her set-off, and distributive share of my estate.

“Second. I give, bequeath and devise to my children, Alfred Stokes, Charles E. Stokes and Clara McGee, the rest, residue and remainder of my property in equal proportions, but in case of the death of my sons, Alfred and Charles E., or either of them, without issue living at the time of his decease, then the share of the one dying without issue shall be divided equally between my grandchildren, Henry Weston and Porter Weston." The special term held that the second subdivision of the will referred to the event of the death of said sons, or either of them, in the lifetime of the testator, and as they survived their father, they, with their sister, Clara McGee, were the owners in equal shares of the entire estate of the testator, real and personal, subject to the life estate of the widow. The general term reversed the judgment, holding that the sons took a mere contingent estate in fee, liable to be reduced to a life estate, as to each of them, in the event of his dying without lawful issue living at the time of his death, whether such death occurred before or after the decease of the testator. We are of opinion that the judgment of the general term should be reversed and that of the special term affirmed. In the Matter of N. Y., L. & W. R. R. Co., 105 N. Y. 92; 6 St. Rep. 851, Judge Rapallo said: “ It may be regarded as a settled rule of construction that where there is a devise to one person in fee, and in case of his death to another, the contingency referred to is the death of the first-named devisee during the lifetime of the testator, and that if such devisee survives the testator he takes an absolute fee; that the words of contingency do not create a remainder over to take effect upon the death, at any time, of the first taker, nor an executory devise, but are merely substitutionary and used for the purpose of preventing a'lapse in case the devisee first named should not be living lat the time of the death of the testator. This construction is uniformly adopted unless there is some language in the will indicative of a different intention on the part of the testator. The reason assigned for this construction has been that, as death is a certain event and the time only is contingent, the words of contingency in a devise of this description can only be satisfied by referring them to a death before some particular period, and no other being mentioned, the time referred to must be presumed to have been the testator’s own death. It is also founded upon the principle that, in constructing wills, effect should be given, if possible, to all the words used by the testator, and that any other construction than the one which has been adopted would in every case reduce the estate of the first named devisee to an estate for life; for his death at some time is certain, and the words of inheritance attached to the devise to him would in every case be inoperative." The rule and its reasons thus stated have been recognized by the courts of England and this state for many years. In case of Doe, Lessee of Lifford, v. Sparrow, 13 East, 359-Lord Ellenborough laid down the rule after elaborate reasoning, and in Gee v. The Mayor, &c., of Manchester, 17 Adol. & Ell. 736, Lord Campbell further discussed the rule and approved the reasoning of Lord Ellenborough in the case cited. See, also, Clayton v. Low, 5 Barn. & Ald. 636; Woadbourne v. Woodbourne, 23 L. J. Ch. 336; Moore v. Lyons, 25 Wend. 118; Livingston v. Greene, 52 N. Y. 118; Kelty v. Kelly, 61 id. 47 ; Embury v. Sheldon, 68 id. 227; Vanderzee v. Slingerland, 103 id. 47; Nelson v. Russell, 135 id. 137; 48 St. Rep. 64.

An examination of the cases in this court where the rule has not been applied will disclose the fact that there was some language of the testator indicating a different intention. Such a case was Mead v. Maben, 131 N. Y. 255 ; 43 St. Rep. 167, Judge Gray expressly rested the decision of the court, which refused to apply the rule in that case, on the special language of the testator. In the case at bar, the judge at special term was of the opinion that the “ natural import ” of the language of the will referred to a death either before or after the death of the testator, but felt constrained by the rule under discussion to a different conclusion. If the will was susceptible of such a construction as the learned trial judge supposed possible, then the rule in question had no application, his decision was erroneous and the judgment of the general term would have to be sustained. We are, however, of the opinion that there is no language of thp testator indicating that he referred to the death of his sons after his own decease. The rule referred to, therefore, applies to this case and leads to a reversal.

We also hold that a fair interpretation of the language of the second subdivision of this will leads to the same result independently of this rule of construction. The will is brief and on its face manifests a clear, natural and well-considered scheme. The task the testator had in hand was to provide for his widow, two unmarried sons, and a married daughter having two children. In the first subdivision of the will he gives his wife the use of his entire estate for her life. In the second subdivision of the will, by apt language, he vests his entire estate in his two sons and daughter in equal proportions, and goes on to say, “ but in case of the death of my sons, Alfred and Charles E., or either of them,, without issue living at the time of his decease, then the share of the one so dying without issue shall be divided equally between my grandchildren, Henry Weston and Porter Weston.” It should be remembered that the testator was, in the clause under construction, seeking to dispose of his entire estate, and having vested the title in his three children, ordinary prudence required him to guard against intestacy as to the share of a son who might die without issue before the will should take effect, as the statute protected the issue of children dying in the testator’s lifetime. 2 R. S. 66, 66 § 52 ; 4 R. S. [8th edition] p. 2539, § 52. The testator thus indicated his clear intention to divide his estate equally among his children if they should survive him, but if either son died without issue before the will took effect, his share should go to the grandchildren who were males in preference to his surviving children, one of whom was a daughter. This construction gives full force and effect to all the language of the will and does equal justice to the three children of the testator. On the other hand, the construction contended for by the guardian ad litem of the infant grandchildren, the respondents, ignores the plain provisions of the instrument, and if sustained, would lead to an unjust and unnatural will. It would give to the daughter absolutely one-third of the estate, real and personal, while each son, one forty-two and the other forty years old at testator’s death, would take a mere contingent estate in fee in one-third of the estate, liable to be reduced'to a life estate at any time by his death without issue. Such an estate is of little value either to sell or to mortgage, and while it was perfectly competent for the testator to have thus discriminated between his children, we hold that such intent must be made manifest by plain and unmistakable language, which is not to be found in the subdivision of the will we are now construing.

The law favors equality among children in the distribution of estates, and in cases of doubtful construction it selects that which leads to such a result. Furthermore, the law favors the vesting of estates; in the will before us there are apt words bequeathing and devising the entire estate in equal, proportions to the three children of the testator, and our construction of the language that follows gives full force and effect to these words of bequest and devise. Embury v. Sheldon, 68 N. Y. 136 ; Roseboom v. Roseboom, 81 id. 356; Campbell v. Beaumont, 91 id. 464; Byrnes v. Stilwell, 103 id. 453; 4 St. Rep. 241. We are satisfied this construction .of the will is in strict accordance with the testator’s intentions, and is perfectly just to his surviving children.

The judgment of the general term is reversed and the judgment of the special term affirmed, with costs to the appellant in all the courts. All concur, except Gray, J., dissenting.

Judgment accordingly.


text:
    Thomas Flynn, Resp’t, v. The Central Railroad of New Jersey, App’lt.

      (Court of Appeals,

      Filed June 5, 1894.)

    1. Jurisdiction—New York Superior Court.
    The Superior Court of the City of New York has jurisdiction in an action by a resident of this state for any cause of action against a corporation created by or under the laws of any other state, government or country.
    2. Negligence—Invitation.
    The owner does not, by inviting another upon his premises, become an absolute insurer of the latter’s safety, even in the absence of his negligence.
    3. Same—Duty op owner.
    Persons occupying real property for business purposes must use reasonable prudence and care to keep their property in such a condition that those, who go there, shall not be unreasonably and unnecessarily exposed to danger. v
    Appeal from judgment of the general term of the superior court of the city of New York, entered upon an order made February 6, 1893, which affirmed a judgment in favor of plaintiff entered upon a verdict, and also affirmed an order denying a motion for a new trial. The nature of the action and the facts, so far as material, are stated in the opinion. -

      George Holmes, for app’lt; Edmund R. Terry, for resp’t.

       Reversing 51 St. Rep, 84.

   Bartlett, J.

The plaintiff sues to recover damages for alleged personal injuries. The case was tried in the superior court of the city of New York, a jury finding a verdict of $2,500 for the plaintiff. The judgment entered upon the verdict was affirmed by the general term. A preliminary point was taken at the trial and argued on this appeal challenging the jurisdiction of the superior court of the city of New York either of the defendant or the subject of the action. It is claimed that, as the plaintiff at the date of commencing the action was a resident of the city of Brooklyn, the defendant a foreign corporation, and the cause of action one that accrued in New Jersey, the court, under 263, subdivision 7 of the Code of Civil Procedure, had no jurisdiction. This section deals with the jurisdiction of superior city courts. Subdivision 7 extends it “ to an action by a resident of that city against a foreign corporation, either (1) to recover damages for the breach of a contract, express or implied, or the sum payable by the terms of a contract, express or implied, where the contract was made, executed or delivered within the state ; or (2) where a warrant of attachment granted in the action has been- actually levied within that city upon property of the corporation; or (3) where the summons is served by delivery of a copy thereof, within that city, to an officer of the corporation, as prescribed by law.” „

It is sufficient answer to this objection that the jurisdiction of the superior court of the city of New York is defined by article 6, § 12 of the Constitution of this state, which reads in part as follows: ‘"The superior court of the city of New York” (and three other courts named) “are continued with the powers and jurisdiction they now severally have, and such further civil and criminal jurisdiction as may be conferred by law.”

This article of the Constitution was ratified by the people in November, 1869, and took effect in 1870. At that time trie superior court of the city of New York had jurisdiction in an action by a resident of this state for any cause of action against a corporation created by or under the laws of any other state, government or country. Code of Procedure, § 427. Any legislación limiting this jurisdiction is unconstitutional.

This court in Popfinger v. Yutte, 102 N. Y. 38 ; 1 St. Rep. 334, held subdivision 5 of § 263 of the Code of Civil Procedure unconstitutional as being in conflict with the provision of the Constitution already cited. We hold the superior court of the city of New York had jurisdiction of this action. We now come to the consideration of this appeal on the merits.

The plaintiff, a grain shoveler, at the time of his injury, was employed by the firm of Edward Annan & Co., on board of one of their grain elevators, engaged in transferring grain from a canal boat to the cars of the defendant’s road. The elevator "was made fast to one of defendant’s piers in Jersey City, and the canal boat laid at the side of the elevator away from the pier, while the cars on which the grain was being loaded stood on a track of defendant’s said piers. Between these cars and the side of the pier to which the elevator was secured was another track on which stood empty cars which were in the control of defendant, but with which plaintiff and his employers had nothing to do. In loading the grain it was necessary for plaintiff and others to pass frequently from the elevator to the cars being loaded, and for convenient passage a space of about six feet had been left between two of the cars standing on the intermediate track. While plaintiff, in the discharge of his duty, was passing through this space the cars were suddenly forced together and he was very seriously injured. This' is an outline of the facts as alleged by plaintiff, and to some extent controverted by the defendant, and concerning which a large amount of evidence wras submitted to the jury. As we are of opinion that there was legal error in the learned trial judge’s charge to the jury which leads to the reversal of this judgment it is unnecessary to consider many of the questions discussed on the argument and in the briefs of counsel. The main question in this case is whether, upon the facts submitted to the jury, the defendant is liable. The court charged as the rule of law governing this liability as follows: “ The rule of law is that if a person invites another to come upon the former’s premises, and premises which the former controls, he is responsible for any injury which ensues from the other person going upon those premises where he is invited. And it is so in this case.” The defendant’s counsel excepfed to this part of the charge, and the court said: “ I repeat, that unless the fact is that the person is negligent himself.” The effect of this charge was to practically instruct the jury that if one invites another upon his premises he becomes the absolute insurer of his safety unless the person invited is guilty of negligence. There is no such rule of law, and it is impossible to say that the jury were not misled by this part of the judge’s charge. The general rule applicable to persons occupying real property for business purposes is that they must use reasonable prudence and care to keep their property in such a condition that those who go there shall not be unreasonably and unnecessarily exposed to danger. The measure of their duty is reasonable prudence and care. Larkin v. O'Neill, 119 N. Y., 225; 29 St. Rep. 34; Newall v. Bartlett, 114 N. Y., 399; 23 St. Rep. 732: Hart v. Grennell, 122 N. Y., 374; 33 St. Rep. 553; Ackert v. Lansing, 59 N. Y., 646.

We regret the necessity for reversing this judgment, as this isa case peculiarly within the province of a jury to decide, and we express no opinion on the merits. If another trial is had it will be for the jury to determine the precise state of facts under which the plaintiff éntered upon the pier of the defendant, and' received the injuries of which he complains; and it will be the duty of the trial judge to instruct the jury as to the rules of law applicable to the facts as found.

The judgment and order appealed from are reversed, and new trial ordered, with costs to abide the event. Judgment reversed.

All concur.


author: Andrews, Oh. J.

text:
    Sarah A. Carson, App’lt, v. Simon Dessau, Resp’t.

      (Court of Appeals,

      Filed June 5, 1894.)

    1, False imprisonment—Suspicion.
    A person cannot be made liable, in an action for false imprisonment, on a suspicion merely of his concert with another in procuring the alleged arrest.
    S. Same—Question of fact.
    The jury have a right to take into consideration all the circumstances, occurring at the immediate time and before, bearing upon, and aiding in, the interpretation of his conduct and participation. '
    Appeal from judgment of the general term of the superior court of the city of New York, entered upon an order made February 8th, 1893, which affirmed a judgment in favor of defendant entered upon an order dismissing the complaint on trial at circuit. This action was brought to recover damages from defendant, and one David Dessau, who was joined as a party defendant but has died since the action was commenced, for alleged false imprisonment. The facts, so far as material, are stated in the opinion.

      L. A. Gould, for app’lt; Leon Lewin, for resp’t.
   Andrews, Oh. J.

We think the case should have been sub-, mitted to the jury upon the que'stion whether the defendant acted in concert with David Dessau in procuring the arrest of the plaintiff and aided or abetted it. The complaint was 'dismissed on the conclusion of the evidence on behalf of the plaintiff, and, if unexplained it justified an inference that the defendant was a party to the unlawful arrest the court should not have taken the case from the jury. Upon the uncontradicted proof the plaintiff had a valid claim against the defendant and went to his office to collect it. That the place where she went was the defendant’s place of business was indicated by a sign with his name thereon. Finding the defendant there she addressed him, asking payment of the bill. He made no reply, but his father, David Dessau (since deceased), whom the plaintiff did not know and had never seen before, interposed and addressed her on the subject of the.bill. The plaintiff said: “I am not addressing you; I am addressing the gentleman who owes me the bill,” and then again speaking to the defendant said: “I hope you will pay me the gas bill and not put me to any trouble.” The defendant remained mute, and the plaintiff then said: “Well, the only thing I can do is to state my case to the World’ and see what they can do for me. I am too poor to lose that money.” Thereupon, as the plaintiff testified, the defendant called to his father and whispered to him. The father said nothing and his lips did not move. On the conclusion of the whispering David Dessau directed a young man in the office to go for a detective, and turning to the plaintiff said: “Madam, be seated.” An officer soon came and the father said to him: “I want you to arrest that woman.” The officer said, “What for,” and he replied, “For blackmail; she has come to extort money from me and I don’t owe her any money. I don’t know her, she is a stranger.” The plaintiff protested that she was not liable to arrest; that she made no claim against David Dessau, but that her claim was against the defendant. The officer said something - about preferring a charge, and David Dessau said: “I prefer the charge of blackmail.” The plaintiff was compelled to go with the officer and David Dessau to the station house, and there the latter charged her with blackmail. She was taken below to a cell and kept in the corridor till morning, when, on being brought before the justice, the charge was changed to that of disorderly conduct and she was fined $10, which she paid and was thereupon discharged.

The arrest of-the plaintiff was without warrant, on a charge of crime, when in fact, according to her testimony, no crime had been committed, and no reasonable ground for suspicion existed on the part of David Dessau, by whose immediate direction the arrest was made. lie was guilty of false imprisonment whether or not the officer was liable. Holley v. Mix, 3 Wend. 351, and cases cited; Burns v. Erben, 40 N. Y. 463. The defendant did not by word participate in the direction given by David Dessau, unless the jury would have a right to infer from his relation to the transaction that the direction of David Dessau to have an officer brought immediately following the whispered communication was with his concurrence and advice. The defendant cannot be made liable on a suspicion merely of his concert with his father in procuring the alleged arrest. But can it be said that the evidence upon this point did not rise above the grade of conjecture to the dignity of proof? The jury had a right to take into consideration all the circumstances, as well those occurring at the immediate time and before, bearing upon and aiding in the interpretation of the defendant’s conduct and participation. There is a fact of some significance ante-dating, the day of arrest. The plaintiff testified that a short, time before that day and after the defendant had left the flat, she had written him and he came to see her with an officer, and during the conversation about the gas hill he said, “that if I bothered him,about any bill, he would make it pretty hot for me.” A few days after she had the interview at the office. Considering this threat in connection with the defendant’s condqct at the office; his remaining mute; his whispered communication; the order given by David Dessau immediately following; the absence of any protest on his part when it was a matter between himself and the plaintiff alone to which the interview related, we cannot say that unexplained the jury might not have found that the act of- David Dessau was instigated by the defendant. We express no opinion as to the conclusion which should be reached by the jury. We hold merely that upon the evidence given the jury should have been allowed to pass upon the question.

The judgment should be reversed and a new trial- granted.

All concur.

Judgment reversed.


author: Parker, J.

text:
    Jacob B. Nordlinger, App’lt, v. Manhattan Railway Company, Resp’t

      (Supreme Court, General Term, First Department,

      Filed April 13, 1894)

    Evidence—Opinion.
    A question as to whether a structure in front of premises occupied by the witness “cuts off any light” therefrom, calls for a fact, and not an opinion.
    Appeal from a judgment dismissing' the complaint on its merits.

      E. W. Tyler and E. A. Hibbard, for app’lt; Julien T Davies and Sherrill Babcock, for resp’ts.
   Parker, J.

The purpose of this suit was to procure an injunction enjoining the defendants from the maintenance of their elevated railway in front of plaintiff’s premises, and also to obtain as incidental to the decree of injunction, an assessment of the past injuries to the rental value. A station of the defendants is situated at the corner of Forty-second street and Second avenue, and the platform of the station extends the full length of the building. The issues presented by the pleadings were referred to a referee to hear and determine. After the hearing, he determined that the plaintiff had not been injured by defendants’ station, and dismissed the complaint. Among the findings of fact upon which he based his conclusions of law was the following:

“No substantial interference with the air or light of said premises has been shown to result directly from the maintenance of the railway structure of the defendants in said avenue.”

But that is what the plaintiff apparently attempted, although ineffectually to prove. A tenant in the building in question being under examination, the plaintiff asked him :

“Q. Now, then, will you state whether or not this platform in front of your store cuts off any light from the front part of the store ? The question is whether any more light would come to it if that structure and station was not there, or if the light is cut off by it. (Objected to by defendants’ counsel, on the ground that it calls for an opinion of the witness upon a state of facts that does not exist. The referee sustained the objection, and counsel for the plaintiff duly excepted.)”

The objection was not well taken. The question called for a fact. Whether an awning or an elevated railway platform overhanging a window “ will cut off any-light ” is a fact easily within the grasp of the average intellect. As the error is one calling for reversal, we need not discuss the other exceptions to which our attention has been called.

The judgment should be reversed, with costs to the appellant, to abide the event

All concur.


text:
    Julia V. Pape, as Administratrix, etc., Resp’t, v. Joseph L. Schofield et al., App'lts.

      (Supreme Court, General Term, First Department,

      Filed April IS, 1894.)

    1. Estoppel—Enjoyment of benefits.
    A party, who has accepted the conditions of an order and obtained the benefits which it grants to him, is bound by it.
    2. Same—In pais.
    Where a tenant in common was induced to execute a conveyance of the premises by agreement, on the part of his co-tenants, that his claim for his share of the rents should be retained out of the proceeds, and the amount actually due him ascertained and paid, they cani.ot object, in an action against them therefor, that his claim was personal against the co-tenant who had collected the rents, and can be enforced only against him personally.
    Appeal from a judgment in favor of plaintiff;

      F. L. Moissen, for app’lts; John Delahunly, for resp’t.
   Parker, J.

Prior to the 22d day of December, 1883, Joseph L., Simon R, and Helen Schofield, Mary Rich, and Catharine R Pape were tenants in common of certain premises situated in this city. On that day Catherine R Pape died leaving, her surviving, her husband, Ernest D. Pape, who thereupon became vested with a tenancy by the curtesy in an undivided one-fifth share of such premises. About the 1st of August, 1888, the owners of the fee had presented to them an opportunity to sell the real estate at what seemed a favorable price, and their agent and attorney, Thomas J. McKee, thereupon undertook to induce Pape to join in the conveyance. This he at first refused to do, unless he should be paid a proportiqn of the rents due him as 'tenant by the curtesy, together with the unpaid rents which were due to his wife at the time of her death, and the value of his interest as such tenant, to be computed according to the method provided by law. Pape prepared and presented an itemized statement of his claim, aggregating $7,775. The correctness of the claim was not admitted, and, the time for the completion of the sale being near at hand, it was agreed between the agent for the owners of the fee and Dr. Pape that a sum of money equal to the amount claimed by him should be retained out of the purchase money, for the purpose of paying whatever amount it should afterwards be agreed of right belonged- to, the claimant. Accordingly the sale took place, the money was retained by the" agent, McKee, as stipulated, but, the parties being unable to agree upon the amount due, Pape instituted this suit, in which he demanded an accounting for the rents to which be made claim individually, as well as those alleged to be due him as administrator of his wife’s estate, and for the gross value of his tenancy at the time of the conveyance. Two of the defendants answered, the others suffered default, and, the case being at issue, t'he special term sent the matter to a referee', to take and state 'the accounts, and report; the interlocutory decree further adjudging that upon the coming in of the report of the referee, and the confirmation of the same, plaintiff have judgment that the defendant pay to the plaintiff out of the moneys in his hands, mentioned in the complaint, the sum which may be found due him as tenant by the curtesy in said premises, and as administrator of Catharine E. Pape, deceased. The referee reported that there was due to the plaintiff the sum of $6,341.23, the report being dated and filed December 13,1889. Two days later the plaintiff, Pape, died. Shortly afterwards his executrix was substituted in liis place as plaintiff, and on November 29, 1890, final judgment was entered, confirming the referee’s report, and directing payment to the plaintiff, by McKee, out of the funds in his hands, the sum reported due, with costs. Thereafter Simon E. and Helen Schofield and Mary Eich, who had not appeared in the action, made application to the court that the default be opened. The motion was granted, the order providing that they be allowed “ to come in and litigate the question as to the amount that should be paid Dr. Ernest D. Pape’s estate from the funds in the hands of Thomas J. McKee (one of said defendants), and for that purpose interposes answers to the amended complaint in said action, and said motion to that extent is hereby granted, upon condition—First, that said defendants will not and do not take or interpose any technical objection to the right of the said plaintiff to continue the action as it is now framed; second, that said action be sent back to the referee appointed by the interlocutory judgment therein for trial upon the issues made by the answers to be interposed to said complaint by said defendants, respectively, such answer or answers to be served within ten days after the entry of this order, and the reference to proceed thereafter upon two days’ notice.” The proceedings thereafter had resulted in a report by the referee that there was due the plamtiff the aggregate sum of $6,309.54, which report was confirmed at special term, and judgment accordingly entered. Under this state of facts, it seems a little remarkable that the defendants who were allowed to come in by the court, after judgment had been rendered, for the purpose only of litigating the sum due, should contend with apparent seriousness—First, that however substantial the claim of Dr. Pape may have been for moneys accrued to him by reason of his tenancy by the curtesy, it abated on his death; second, that the plaintiffs failed to prove any personal liability on the part of the co-tenants other than Joseph L. Schofield, who collected rents; third, that the agreement did not provide that the sum set apart to secure Dr. Pape, or any part of it should be applied in the payment of rents due him, either individually or as administrator.

In the light of the facts disclosed by this record, to the principal features of which we have briefly alluded, it is apparent that the points referred to ought not to have been insisted upon here; but, as they have been unsuccessfully presented, there will result no practical difference. Touching, the first point, it is unnecessary for us to determine what would have been the effect upon the claim which Dr. Pape made had he died before the granting of the interlocutory judgment, and the making and filing of the report of the referee in pursuance thereof. That judgment was valid and final as to the rights of the parties until reversed on appeal, and, as no appeal has ever been taken from it, it is not before this co«t for review. The merits of the controversy being thus adjusted as between the parties, three of the defendants asked that their default might be qpened, and they allowed to come in- and defend.. Apparently for the purpose of depriving the petitioners seeking relief from their default from making such use of the-benefit which they sought as would work injustice to the estate of the deceased, Dr. Pape, the court established the limits of the answer, and inserted as a condition for the opening of the default that defendants should not interpose afny technical objections to the rights of the plaintiff to continue the action in its present form. Now, having accepted the conditions bf the order, and obtained the benefits which it granted to them, defendants are bound by it.

The point next made is that liability for rent collected by one tenant in common for his co-tenant is a personal one, and on only be enforced against him personally. The applicability of that proposition to the situation which the facts of this case present is sought to be founded on the fact that the"rents for a number of years, for which the plaintiff has recovered, were collected by Joseph L. Schofield, one of the co-tenants. The contention is not well grounded, however, because the situation is changed by the stipulation and agreement of the parties. The owners of the fee, being anxious to sell the property, attempted to induce Dr. Pape to unite with them in a conveyance, but he refused on the ground that he had not received the proportion of the rent due to him individually and as administrator of Mrs. Pape’s estate. This refusal standing in the way of the consummation of their agreement to sell, they attempted to provide a method which should secure to him whatever should be found to be actually due. Thus, the several defendants did not sign the agreement, but McKee, their agent and attorney signed it for them, as he was authorized to do, and some,’if not all, of them knew what the arrangement was prior to the execution of the conveyance. The whole transaction, therefore, amounted, in effect, to an agreement between the parties that the whole or such part of the claim of Dr. Pape as should turn out to be well founded, which claim was then before them in the form of an itemized statement, should be paid opt of the fund to be retained from the proceeds of the, sale by the agent, McKee.

For the reason presented in the discussion of the first and second points, the third cannot avail the defendants.

It is further insisted that the referee erred "in finding Dr. Pape to have been of the age of 63 years on the 1st day of August, 1888. jAn attentive reading of the evidence leads us to the conclusion that the referee’s finding has such support therein as denies to this court the right to interfere with it.

The judgment should be affirmed, with costs.

All concur.


author: Van Brunt, P. J.

text:
    John Poth, Resp’t, v. The Mayor, etc., of the City of New York, App’lt.

      (Supreme Court, General Term, First Department, Filed

      April 13, 1894.)

    Municipal corporations—Assessments—Void.
    A person who is compelled to pay an assessment, part of which is void, may afterwards have it declared void and recover hack the whole amount paid, though he made no effort to have it corrected.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      G. I. Sterling, for the motion ; J. Flannery, opposed.
   Van Brunt, P. J.

This action was brought to have an assessment declared void, and to recover back the amount paid upon the same by the plaintiff. There is no question raised upon this appeal as to the payment being voluntary, nor is it claimed upon the part of ’the defense that the whole of the assessment in question was valid. But it is conceded that some material portion of the assessment at least is void, and it is claimed upon the part of the plaintiff that, such being the fact, and the payment of the assessment having been involuntary, in this action he has a right to have the whole assessment declared void, and to recover back the whole amount paid. If this position is well taken,—as we fear it is, if we comprehend correctly the adjudications in the court of appeals,—then the sluggard who has waited until the last moment to ask the intervention of the court is able to obtain much greater relief than he who has acted with diligence, and sought to have the evils under which he has suffered promptly corrected. There is no question but that, if any proceedings had been taken prior to the payment of the assessment by the plaintiff for the purpose of redress in respect to the illegalities complained of in the assessment, all the relief he could have obtained would have been to have had the same reduced to the fair value of the improvement by which his property had been benefited. But, having commenced proceedings for this relief, and having abandoned them, and having waited until his property was advertised for sale, and then having paid the assessment, it seems that he can maintain an action to have the whole assessment declared void, and recover back the whole amount paid; and this because it seems to have been held by the court of appeals that the prohibitory legislation contained in the consolidation act was applicable only to cases where the lien of the assessment continued, and had no application whatever to those cases where a party took no steps to obtain any redress for the injustice done him, but waited until his property was about to be sold in the ordinary procedure, and then paid the assessment, and removed the lien. It is undoubtedly true that in the cases of Chase v. Chase, 95 N. Y. 373, and In re Smith, 99 N. Y. 424, the court states that, although the effect of such legislation is to prevent a party from taking active proceedings to have an assessment declared void, it did not deprive him of his power to stand upon his legal rights, and challenge' the validity of the assessment, whenever his property was seized under it, or' it was made the foundation of proceedings against him. But we think that in the cases of Jex v. Mayor, 103 N. Y. 586; 3 St. Rep. 657: Diefenthaler v. Mayor, 111 N. Y. 331; 19 St. Rep. 126; Tripler v. Mayor, 125 N. Y. 617 ; 36 St. Rep. 141, the court of last resort had construed the statutes in question to apply to those cases only in which the lien of the assessment continued. It is-true that the Jex Cáse construed the act of 1858, as amended in 1874, and that the Diefenthaler Case construed the act of 1880,. which differs materially from the provisions of the consolidation, act-, which prevailed at the time the plaintiff’s rights,- if any, accrued. In Tripler v. Mayor, however, the court seems to have1 recognized the right to a recovery of the whole of an assessment notwithstanding the prohibitions contained in the consolidation act, where irregularities and illegalities existed which affected the validity of the assessment, and where the payment of the same had been involuntary. It is true that in that case the court held that the payment was not involuntary, and that a recovery could not be had upon that ground; but, in view of the opinions expressed in the Jex and Diefenthaler Cases, it would seem that the court, had determined that the same principles applied.

If it were not for this decision in the .case of Tripler v. Mayor, we think it might well be shown that the enactment contained in the consolidation act in reference to the vacating and modifying of assessments materially differs'in its provisions from those which-existed under thp act of 1858, as amended in 1874, and those which were contained in chapter 550 of the Laws of 1880. Section 9 of the law of 1880, which was held to be controlling in the disposition of the Diefenthaler Case, by its language expressly referred to-the assessment specified in the first section of the act under which the assessment in the Diefjnihaler Case fell; and that section provided that the lien of such assessment should not be disturbed, modified, etc. It might very well be held, therefore, under that-act, that all that the legislature was legislating in respect to were the liens created by such assessments. But in the consolidation act, upon an examination of §§ 897-903, 913, it seems to us that it will be seen that there was no intention to restrict the prohibition to' those cases in which an application was made to the courts for relief in respect to the lien of the assessments. It may be that the rule laid down in Re Smith and in the case of Chase v. Chase would still obtain, viz. that there was no intention' to take away the right of the property owner to defend against-an illegal assessment when it was attempted to seize his property because thereof.; but that the intention of the legislature1 by the- enactments contained in the consolidation act was to make its provisions apply to all assessments confirmed after June 9, 1880, the date of the passage of chapter 550 of the Laws of 1880 (a class different from those affected by the-last-mentioned act), seems to be manifested upon an examination of the sections of the consolidation act to which reference has been made. Section 897 provides that no suit or action in the nature-of a bill in e'quity or otherwise shall be commenced for the vacation of any assessment, or to remove a cloud upon title, but the owners shall be confined to their remedies in such cases to the proceedings under this title (which was substantially the act of 1858, as amended by the act of 1874. Section 898 provides for the proceedings to be taken to obtain relief for fraud or substantial error in an assessment. Section 899 provides that assessments shall not be vacated because of certain omissions. Sections 900 and 901 are simply directory as to procedure. Section 902 provides that §§ 898-901 shall apply to the proceedings therein stated, viz.: First, to proceedings or actions commenced on or before September 9, 1880, to vacate or set aside assessments for any local improvement confirmed by the board of revision and correction of assessments before June 9, 1880; and, secondly, to proceedings or actions which, since June 9th, have been commenced, or may hereafter be commenced, to vacate or set aside any assessment completed before said day, etc. And then by § 908 the legislature provided génerally that no court should vacate or reduce any assessment in fact or apparent, confirmed after June 9, 1880, whether void or voidable, on any property for any local improvement thereafter completed, otherwise than to reduce, etc,; and further provided that in no event should that portion of any such assessment which is equivalent to the fair value of any actual local improvement, with interest from the date of confirmation, be disturbed for any cause. Mow, it is apparent from the language of this section that it is intended to be absolutely prohibitory in respect to all proceedings affecting such assessments, and that it does not refer to the proceedings provided for by § 897, among many other reasons, because no suit to remove a cloud upon the title could be maintained in respect to an assessment which was void upon its face; and the language of this section covers that, procedure as well as all others. Section 903 stands by itself, having reference to no other portion of the act. It is explicit in its terms, and, as already stated, there is nothing in any other provision of the act which restricts its operation; and when we read § 913 it is more plainly seen that there is no foundation for the claim that § 903 applies only to those cases in which liens for assessments exist, but that it prohibits all affirmative action upon the part of the property owner, except to have an assessment reduced to the fair value of the actual local improvement. Section 913 says: “The lien of any assessment specified in § 902,” and then follows the language which occurred in the act of 1880. Section 902 applied only to those cases where the assessment had been completed before June 9, 1880, and confirmed by the board of revision and correction after said date. But § 908 applied to all assessments confirmed after June 9, 1880, and was general in its terms, and was not in any way restricted by the wording of § 913. Although this seems to us to have been the intention of the legislature, and secured manifest justice to the property owner, as well as afforded some protection to the city, yet, in view of the decision in Tripler v. Mayor, where the court held that an action such as the one at bar could be maintained t© recover the whole amount of the assessment because of illegality in part, we feel bound to hold that the plaintiff was entitled to recover the whole amount of the assessment The exceptions should be overruled, and judgment ordered upon the verdict rendered, with costs.

All concur.