text:
    Laura M. Buck, Resp't, v. Village of Glens Falls, App'lt.

      (Supreme Court, Appellate Division, Third Department,

      Filed April 14, 1896.)

    Municipal cobpobation—lev sidewalk.
    The mere fact that there is ice on the sidewalk, rendering it slippery, does not make a municipal corporation liable.

      Appeal irom a judgment entered on a verdict in favor of plaintiff, and from an order denying a new trial made on the minutes.
    James H. Bain for app’lt; Lyman Jenkins, for resp’t.
   MERWIN, J.

— On the 16th January, 1895, at about twenty minutes past nine in the evening, the plaintiff, while passing along the sidewalk in front of the residence of one Byrnes on Grlen street, in the village of Glens Falls, slipped upon an icy surface and fell, receiving injuries for which she seeks in this action to recover damages. She claims that the defendant was negligent in allowing the sidewalk to remain in a slippery condition, and the recovery is on that basis. The walk was constructed of blue stone and brick, the blue stone being in the central part, and five feet wide. Brick was laid between the stone and the line of the lot, a space about two feet wide. There was a stone walk from the sidewalk to the residence of Mr. Byrnes. The lot, except at the gateway, was separate from the sidewalk by a coping about six inches high. The plaintiff testified that as she passed along the center of the walk she saw, at the side, near the coping, what appeared to her like bare sidewalk, but instead of that it was glare ice, and as soon as she stepped on it she slipped and fell; that she was about two feet from the walk that led to the house, of Mr. Byrnes; that she went that way on purpose, because she thought it was bare walk, and knew the walking was treacherous; that she could see the red color of the brick through the ice for five or six feet back of where she fell; that there was some snow and ice on the center of the stone walk that she was walking along. Mr. Clements, a witness for plaintiff, testified that he was walking behind the plaintiff, and that as he went to pass her she slipped' and fell; that it was glare ice where she fell; that, as he remembered it, it had been so at least a week; that children sliding on it called his attention to it, and it was a children’s slide; that the slide was directly in front of the entrance to the walk leading to the house, and extended the full width of the opening, and was about 10 inches wide. Mr. Mosher, a witness for plaintiff, testified that he knew the condition that sidewalk was at the time plaintiff fell and previous; that it was icy, snowing and freezing, and the children were sliding from the house into the street; that the slide had been there, he thought, a week or 10 days, but he was¡ uncertain as to the time, and it extended across the sidewalk into’ the street; that there was no thaw before that for a week or ten days; “very icy, very rainy, very cold, and no thaw.” A table giving the temperature from January 1st to 16th was by consent put in evidence. From this it appeared that on the 10th January there was a rainfall of one-fourth of an inch; that on the lltb, 12th, and 18th the weather in the middle of the day was some above freezing point, and on the 14th, 15th, and 16th was all the time below freezing point, except that at 1 p. m. on the 10th it was two degrees above freezing. At the place where plaintiff fell it was level, and there was no accumulation of snow. It is not shown how thick the ice was. If, as plaintiff testifies, the color of the brick was visible through the ice, it was not very thick, There was an electric light near the walk leading to the residence of Mr. Byrnes. It is very clear from the evidence that the ice upon the brick on the day of the 16th was the result of the rain on the 10th, followed by milder weather on the 11th, 12th, and 13th, and the freezing weather of the 14th, 15th, and 16th.

The fact simply that there was ice on the sidewalk, rendering it slippery, did not make the defendant liable. Kinney v. City of Troy, 108 N. Y. 567; 14 St. Rep. 15; Kaveny v. City of Troy, 108 N. Y. 571, 575; 7 St. Rep. 332. In Taylor v. City of Yonkers, 105 N. Y. 202: 14 St. Rep. 18, if is said at page 206, 105 N. ,Y.:

“When the streets have been wholly or partially cleaned, it often happens that, a fall of rain or the melting of adjoining snow is suddenly followed by severe cold, which covers everything with a film or layer of ice, and makes the walks slippery and dangerous. This frozen surface it is practically impossible to remove until a thaw comes which remedies the evil. The municipality is not negligent for awaiting that result. It may and should require householders, when the danger is great, to sprinkle upon the surface ashes or sand or the like, as a measure of produce and precaution; but is not responsible for their omission. It is no more bound to put upon the ice, which it cannot reasonably remove, such foreign material, than to cover it with boards. The emergency is one which is common to every street in the village or city, and which the corporation is powerless to combat. Usually it last but a few days, and the corporate authorities may await without negligence a change of temperature which will remove the danger.”

The question is .whether the doctrine of the Taylor Case does not apply here ? There was a thin coating of ice on the brick walk that arose from natural causes, operative in all similar localities. It was shown on the part of the -defendant, and not denied by the plaintiff, that upon the day of the accident, or the day before, sand had been sprinkled upon the slippery portion of the walk by the owner of the lot or his hired man. The counsel for plaintiff cites the case of Keane v. Village of Waterford 29 St. Rep. 340, affirmed in 130 N. Y. 188; 41 St. Rep. 291. In that case the fall of the plaintiff was caused by a ridge of snow and ice which extended along the center of the walk, and was five or six inches high. The situation was materially different from the case in hand. There was here no such accumulation of ice and snow. The doctrine of Taylor Case was not criticised. It was approved in Harrington v. City of Buffalo, 121 N. Y. 147, 151; 30 St. Rep. 719. It is argued that in the present case the slippery condition was due to artificial causes, in that children were accustomed to slide there. One of the witnesses places the slide from the house to the sidewalk and across it into the street. The other witness places it as going in the other direction along the sidewalk in front of the walk to the house. Evidently the children did not confine themselves to one spot. We fail to find in this case any such artificial causes as will take the case from the operation of the rule irr Taylor Case. We are of the opinion that the doctrine of the Taylor Case is applicable, and that it should be held that the plaintiff did not make out against the defendant a case of negligence. A reversal must follow.

All concur.

J udgment and order reversed, and new trial ordered, with costs to abide the event.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jefferson National Bank, Resp't, v. Margaret A. Townley et al., App'lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    Cobpobatiobs—Pbbbebeitobs—Claims.
    An officer, who has full knowledge of the insolvency of the corporation, cannot transfer his claims against the corporation to his wife who has equal knowledge of such insolvency, in order to circumvent the letter of the statute.
    Appeal from a judgment in favor of plaintiff.
    The appellants were and are husband and wife, and each became a stockholder in the defendant corporation. On the 12th day of March, 1888, the appellant, Margaret A. Townley, executed a formal assignment of her thirty shares of stock to her husband. The full transfer of the stock on the books, and the issuance of the scrip therefor, were not completed. On March 21, 1888, the husband, in a letter to F. C. Eddy, giving a list of stockholders in the corporation, enumerated Mrs. H. C. Townley as the owner of thirty shares of stock. On the 17th day of September, 1889, and subsequently Hugh C. Townley was a stockholder of the defendant corporation, and was secretary, treasurer and manager of the company, and held claims for services and an indebtedness against the corporation, as well as for advances made; and the evidence seems to indicate that, after he and his wife knew of the insolvency of the corporation, they entered into a scheme to circumvent the provisions of the statute which prohibited him from acquiring, by transfer or otherwise, any of the assets in payment of his indebtedness . by way of preference; and in consummation of that scheme formal assignments of his indebtedness to his wife were made, and actions were brought in her name upon the indebtedness against the corporation. The papers were served upon him as an officer of the corporation, and the fact of such service was kept secret until judgments were entered by default upon which executions were issued and levies made by the sheriff. The trial judge found, viz.: “ The assignments of the claims against the Eureka Chemical Company made by the defendant Hugh C. Townley to the defendant Margaret A. Townley, were made by the said Hugh C. Townley and received by the said Margaret A. Townley, having full knowledge of the insolvency of the Eureka Chemical Company, for the purpose of enabling the said Margaret A. Townley to obtain a judgment and lien upon the property of the Eureka Chemical Company, and for the purpose of avoiding and evading the statute providing that, whenever an incorporated company shall have refused the payment of any of its notes or other evidences of debt in specie or lawful money of the United States, it shall not be lawful for such company, or any of its officers, to assign or transfer any of the property or dioses in'action of such company to any officer or stockholder of such company, directly or indirectly, for the payment of any debt, and to avoid the decisions of the courts under such statute, and to create and obtain an illegal preference over the plaintiff and other creditors of the said defendant the Eureka Chemical Company,”.
    Louis Marshall, for app’lts; A. H. Sawyer, for resp’t.
   PER CURIAM.

Plaintiff, having recovered a judgment against the Eureka Chemical Company, brings this action on the equity side of the court to obtain relief. The plaintiff alleges the invalidity of the judgments recovered by Margaret Townley, and asks the intervention of the court through the instrumentality of its equity powers. Braem v. Bank, 127 N. Y. 509; 40 St. Rep. 327. Section 4, tit, 4, c. 18, pt. 1 Rev. St (8th ed., vol. 3, p. 1729), was in force at the time of the occurrence of the transactions that are the subject of inquiry in this action. The evidence indicates that the corporation had refused payment of its notes or debts peior to the commencement of the actions by Margaret Townley, and therefore the prohibiting parts of the section were applicable to the corporation. That section of the Revised Statutes provides:

“ It shall not be lawful for such company or any of its officers to assign or transfer any of the property or choses in action of such company to any officer or stockholder of such company, directly or indirectly, for the payment of any debt; and it shall not be lawful to make any transfer or assignment in contemplation of insolvency to any person or persons whatever; and any such transfer or assignment to such officer, stockholder or other person, or in trust for them or their benefit, shall be void.”

The evidence makes quite manifest the scheme of Hugh Townley to so transfer his indebtedness against the company to his wife as to enable her to obtain a preference which he could not by the the letter of the statute have or receive. We are called upon to determine whether such scheme can be successful or not. We think, under the construction that has authoritatively been given to the statute, that the efforts on the part of Hugh Townley and Margaret Townley to gain a preference over the other creditors by the means adopted should fail. Kingsley v. Bank, 31 Hun, 329; Throop v. Lithographing Co., 58 id. 149 ; 33 St. Rep. 880; affirmed, 125 N. Y. 530; 35 St. Rep. 816. While that case was under consideration in the general term of the Eirst department, it was said:

“ It seems to have been the intention of the legislature to prevent persons occupying confidential relations from either directly or indirectly profiting by the information which they may have acquired because of their relation to the corporation they could use to the detriment of the general creditors of the corporation.”

In National Broadway Bank v. Wessell Metal Co., 59 Hun, 477; 37 St. Rep. 102, the scheme pursued was condemned on the ground that unlawful means were used to effect a forbidden end. The means adopted in that case which were condemned consisted of a collusively confessed judgment, and a collusive execution “ issued as a sham and returned as a sham, followed by sequestration proceedings founded upon these shams, instituted by the defendant company against itself, through its own counsel, all to effect the end of a practical transfer by the directors themselves.” In the course of the opinion delivered in Throop v. Lithographing Co., 125 N. Y. 531; 35 St. Rep. 816, Andrews, J., said:

The construction given below is salutary, and in many cases will prevent frauds upon the statute which could not be proved.”

He then adverts to the question as it was presented and discussed in Kingsley v. Bank, 31 Hun, 329, and approves the conclusion there reached. He further adds:

“We think a construction which disables an officer of an insolvent corporation from acquiring a preferential lien on the corporate assets by legal process is justified.”

In the ease in hand we have the effort on the part of an officer, ■who had full knowledge of the insolvency of the corporation, to so transfer his claims to his wife, who is found to have had equal knowledge of the insolvency of the corporation, in order to circumvent the letter of the statute. The scheme was condemned by the special term, and the trial judge expressed his views in respect to the same in an opinion which is found in the appeal book in language which meets with our approval. The force of the opinion of the special term, and the views already expressed, lead to the conclusion that the judgment should be affirmed..

Judgment affirmed, with costs.


author: PUTNAM, J. PARKER, P. J. HERRICK, J.

text:
    Jerry Connolly, Resp't, v. Central Vermont Railroad Company, App'lt.

      (Supreme Court, Appellate Division, Third Department,

      Filed April 14, 1896.)

    1. Railroads—Stock—Gateways.
    A railroad company is liable for killing stock which strays upon the land of'another and thence passes upon the track through a barway in the fence which has been open a long time preceding the accident, though it does not appear who opened it or left it open.
    2. Witness—Credibility.
    The question of the credibility of a witness, whose interest it is to shield himself from any responsibility arising from neglect to perform his duty, is properly left to the jury.
    Appeal from a judgment in favor of plaintiff, entered on a verdict.
    Louis Hasbrouck, for app’lt; John A. Smith, for resp’t.
   PUTNAM, J.

The plaintiff’s horses, at seven o’clock on the evening of April 15, 1894, were at the farm of his son Jerry Connolly. During the night they strayed to the pasture of one Cushing, a mile and a half distant, and from the pasture, through an open barway on the south side of the defendant’s railroad, onto its tracks, where they were struck by an engine and killed. There was sufficient evidence produced to justify a finding by the jury that the barway had remained open during the preceding winter, and up to within a week of the accident, and it was not denied that it was open on the night that the horses were killed. Who opened and left it open does not appear. The plaintiff brought this action to recover the value of the horses, and obtained a judgment, from which the defendant appeals.

Under the provisions of the railroad law (Laws 1890, c. 565, § 82), it was the duty of the defendant to “erect, and thereafter maintain fences on the side of its road, of height and strength sufficient to prevent cattle, horses, sheeps and hogs from coming upon the road from the adjacent lands. The bars placed at the place in question for the accommodation of the adjoining landowners were a part of the fence it was bound to maintain. ' It cannot be deemed to maintain a fence sufficient to prevent cattle and horses from getting upon its tracks if it knowingly suffered openings to remain in such fence, either by the bars which formed a part thereof being taken out or otherwise. It will be observed that the statute cast the duty of maintaining the fence, not upon the adjoining landowner, but upon the corporation. It is probable that had Cushing," the adjoining landowner, opened and left open the barway in question, and afterwards his cattle had strayed upon the track, he could not have recovered their value of the defendant, for the reason that in such a supposed case his negligence would have caused or contributed to the injury. Thus, in Diamond Brick Co. v. New York Cent. & H. R. R. Co., 58 Hun, 396; 34 St Rep. 637, cited by the learned counsel for the appellant, where.the plaintiff had pastured his horse in the field of one owning land adjoining the defendant’s road, from which there was a gate for the accommodation of such owner leading thereon, and this gate the owner habitually left open, it was said in the opinion:

“ If this is neglect on the part of the company arising from a failure to shut the gate, why is it not neglect on the part of the owner to leave it open while using it for the purpose of the farm from day to day, all summer, or a great portion of the summer ? She took her risk. * * * and hired the pasturage to the plaintiff upon the same condition.”

Under the circumstances of that case, it was held that the plaintiff could not recover. The facts in this case are different. The plaintiff was not the owner of the pasture in question. His horses strayed into such pasture from his son’s premises, a mile and a half distant ; also it was not shown that Cushing, the owner of the pasture, for whose accommodation the barway was made in the fence, ever opened and left said barway open. It was shown that he went through the barway once when it was open, and did not close it; but it did not appear that on that occasion he took out the bars. It is not to be presumed that Cushing was responsible for the barwav being open and remaining open during the winter and spring preceding the accident. It was admitted that the horses were killed before the pasturing season had commenced, and therefore Cushing probably had had no business in the pasture field since the season before. Hence the barway, being a part of the fence placed by defendant on its south line, was shown to have remained open for a long period preceding the accident. Who opened it, and who left it open, does not appear. We think defendant, who, under the statute, was compelled to maintain the fence so as to prevent animals from straping on its tracks, was negligent in not closing up this opening of the fence.

In Dayton v. Railroad Co., 81 Hun, 284 62 St. Rep. 747, where the facts were quite similar to those appearing in this case, the general term of the Fifth department sustained a judgment in favor of the plaintiff. In Spinner v. Railroad Co., 6 Hun, 600, affirmed, 67 N. Y. 153, MULLIN, J., said that:

“A company is bound to see to it that all gates on its roads are kept closed, and it is liable if they are left open, even by the persons for whose convenience they are constructed. Such owner owes no duty to the owners of cattle that may be in the highways or adjoining fields.”

The same doctrine is assumed in Hungerford v. Railroad Co., 46 Hun, 339; 12 St. Rep. 204. In that case Martin, J., remarks:

“The defendant was bound to build and keep in repair fences along the side of the tracks, with gates or bars for the use of adjoining owners at farm crossings; and such gates or bars were a part of the fence it was bound to maintain and keep in repair. * * * Before he [plaintiff] could recover on the ground of negligence based on the fact that the horses passed onto the track through the barway, he was bound to prove that' the defendant had had actual notice that the bars were down, or that they had been down for such a length of time that the defendant might be presumed to have had notice thereof through its agents or servants.”

In Chapman v. Railroad Co., 33 N.Y. 369, the action was brought to recover damages caused by the alleged negligence of the defendant in leaving open a pair of bars, as in this case. The bars were left open by one Ryan, employed by the defendant as a day laborer, in the evening, whén he was engaged in his own business. But it was found that, by the terms of his employment, after his lay labor was over, if he saw anything amiss, he was to give attention to it; and he was held to be a servant of the company. Campbell, J., remarked:

“If the bars had been taken down by others, and Ryan, occupying the relation he did to the company, had seen them, or had been notified, there can be no doubt but it would have been his duty at once to put them up. That he took them down himself can make no difference. The neglect of duty was in leaving them down.”

We think the court below properly submitted the case to the jury, and that the verdict is sustained by the evidence. We can discover no error in the charge of the trial judge in regard to the credibility of the witness DeLosh. He instructed the jury that if De Losh’s testimony was relied upon, the plaintiff could not recover; that, if he put up the bars on Saturday before the accident, sufficient time had not elapsed thereafter to give the defendant constructive notice that they were down. He said to the jury:

“If, however, you think the testimony of De Losh is not correct, or cannot be relied upon, and it is a question for you, then you have the right,” etc. “ If you believe De Losh’s testimony,— and yon have no right to disregard it from any capricious motive,— you must give weight to his testimony, unless there are some serious reasons for distrusting or doubting it.”

The testimony of De Losh to a certain extent conflicted with that of witnessess produced by the plaintiff. But if there was not in fact any such conflict, De Losh was a servant of the defendant He had testified that it was his duty, when he walked over the track, to put the bars up when he saw them down. He was therefore an interested witness, naturally desiring to shield himself from any responsibility arising from his neglect to perform this duty. A verdict for the plaintiff would necessarily convict him of a failure to perform that duty. Under the circumstances the question of his credibility was properly left to the jury. Elwood v. Telegraph Co., 45 N. Y. 549; Wohlfahrt v. Beckert, 92 id. 490; Kavanagh v. Wilson, 70 id. 177; Gildersleeve v. Landon, 73 id. 609; Koehler v. Adler, 78 id. 287.

The judgment should be affirmed, with costs.

LANDON and MERWIN, JJ., concur.

PARKER, P. J.

I concur with considerable reluctance. Undoubtedly the company was liable if the bars had been down sufficiently long to give it notice that they were down; but, if the witness De Losh pat them up on Saturday, the company was not liable for their being down on Sunday night. Now, why should not De Losh be believed? There is nothing whatever to discredit his statement. Possibly he lied in order to conceal an omission of duty on his part, but ought the mere fact that it was his duty to put them up lead us to conclude that he lies when he says he did ? I confess it difficult to distinguish the case from the reasoning in Wohlfahrt v. Beckert, 92 N. Y. 490, and therefore I concur, but I do not like it.

HERRICK, J.

(dissenting). I cannot assent to the doctrine of Spinner v. Railroad Co., 6 Hun, 600-603, that “when a gate is put in a fence for the conuenience of the owner of lands adjoining a railroad, and it is not kept shut, the fence is not maintained within the true intent and meaning of the section above cited; ” the section above cited being the one providing for the building and maintaining of fences by railroad corporations. The railroad should not be held liable to the same extent for an open gate or bar way provided for the private use of adjoining proprietors that it is when a portion of the fence is broken down, burned or otherwise destroyed. Maintaining a fence within the meaning of the statute, it seems to me, is altogether a different matter from keeping gateways constantly closed. The gate or bar way is for the very purpose of making a convenient opening through the fence, by which means the people can pass and repass. It is meant to be used from time to time, and it cannot be possible that a railroad company must constantly keep guard over the use by the adjoining proprietors of such a gateway, made for their benefit, under penalty of being held liable to the same extent that it would be if some of the fence had been, destroyed or broken down. This is not like the case of Spinner v. Railroad Co., 67 N. Y. 153, which was the case of an original private farm, crossing being diverted from its purpose, and being used by the railroad company for the benefit of its customers for shipping and unshipping freight. Doubtless, where the railroad company has knowledge that such private bar or gate way is habitually,left open, or is out of repair, so that it cannot be closed, or that it has been broken down or destroyed, so that it no longer fulfilled its office, they might be held liable, the same as when any other portion of the fence has been broken down or destroyed. The case of Hungerford v. Railroad Co., 46 Hun, 339, is not a case that sustains the contention of the plaintiff in this action. There it was simply held that gates or barways are part of the fence that the railroad company is bound to maintain and keep in repair, and it could only be held liable if' the defendant had actual notice that the bars were down, or that they had been down for sucha length of time that the defendant might be presumed to have had notice through its agents or servants. In this case the only proof of notice to the defendant is that one of its servants found the barway open and closed it on Saturday, as the accident in question happened on Monday. It it true that the witness is an interested witness, and that the jury had the right to disbelieve his testimony. At the same time it is the only evidence that the defendant had notice that such bars were open, and was coupled with the statement that they were thereupon closed.


author: PUTNAM, J. LANDON, J.

text:
    Lewis E. Windover et al., as Administrators, etc., App'lt, v. Troy City Railway Company, Resp't.

      (Suprime Court, Appellate Division, Third Department,

      Filed April 14, 1896.)

    1. Master and servant—Risks .
    Where it appears that the deceased had been in the employ of the company as a motor man for several years, and knew that a brake worked hard or was defective, and takes the responsibility of working on the car, he assumes the risk arising therefrom, and no liability on account of the brake is incurred by the company.

      Bo Same—Duty of mastek.
    It is the duty of the company to supply the car, on which the deceased was employed as a motor man, with sufficient and proper help, and with, proper appliances and instrumentalities, to safely operate it.
    3. Same.
    In such case, the employe has the right to rely upon the assumption that the company has performed this duty.
    4. Same.
    Where the employe discovers that the company has failed to furnish proper machinery and appliances for the car, or sufficient help, and, after such discovery, voluntarily continues in the employment of the company, he is deemed to have elected to have assumed the risk resulting from the neglect of the company to perform its duty.
    6. Same.
    But the servant does not assume the risk in the absence of knowledge that the appliance, machinery or coservant is required.
    Appeal from a judgment in favor of defendant,
    This action was commenced by the plaintiffs, as administrators of Lyman Windover, deceased, to recover damages for the alleged" negligence of the defendant, by which it was claimed the death of the said deceased was caused. On the 28th day of December, 1893, in the city of Troy, N. Y., the said Windover was employed by the defendant, as he had been for several years before, as a motorman on one of its street car propelled by electricity. At the time he was injured he was in charge of car Ho. 27, then proceeding in a westerly direction down an incline on Hoosick street, iu said city. The tracks were slippery. The grade of Hoosick street is steep, having in some places a descent of from eight to nine feet to the 100; and the car became unmanageable, and ran away down the incline, and across River street, into a building on the west side thereof. The decedent was so injured by the collision that he died on the next day. The alleged negligence of which the plaintiffs complained was that the brake on the car was defective, and also the defendant’s failure to employ a. “ sandman ” to put sand on the slippery tracks. It was shown that car Ho. 27, on one occasion before, when under the charge of another motorman, had run away. The plaintiffs offered to show that on another occasion, prior to the injury to Windover, another of its cars ran away down the incline of Hoosick street; also that the defendant, after that, for two or three days, had employed a man to put sand on the track, but had subsequently taken him off; also to show that at the time the car ran away prior to the injury to decedent the power on the car was reversed, but its speed was not diminished, because of the slippery condition of the tracks, there being no sand thereon. The evidence so offered was, on the objection, of the defendant, excluded by the court. The following proceedings were also had on the trial, during the examination of the witness Lewis E. Windover: “Q. by the plaintiffs: Was there any sandman provided for the cars running up and down that hill? (Objected to as incompetent and immaterial.) The Court: I don’t see how it can be made material. If a stranger could know that there was no sandman, the deceased must have known it; and if he knew it he must have assumed the risk himself, I think. Ah employe assumes all the apparent risks. I will exclude the matter of the sandman. Mr. Black: I except. I offer to show that the road failed to provide any man or help with which to put sand ■ upon this track of this railroad upon Hoosick street, to assist in the stopping or management of the cars, and that because of that; failure the accident occurred which produced Windover’s death. The Court: I suppose you mean no sandman was employed at any time prior to the death of the déceased ? Mr. Black: Yes; nor at that time. (The offer is objected to as before.) The Court: Excluded on the ground that it was a danger to be assumed, and it was a condition and fact known to the deceased. Plaintiffs excepted.” At the close of the plaintiffs’ evidence they were non-suited by the trial court, aud from the judgment of nonsuit this appeal is taken.
    Frank S. Black, for app’lts; Thomas S. Fagan, for resp’t.
   PUTNAM, J.

The evidence produced by the plaintiffs to show that the brake on car No. 27 on which the decedent was the' motorman at the time of the accident was defective was scarcely sufficient to sustain their contention. They were only able to show that about a month before the injury to Windov'er the brake worked hard. Were it otherwise, however, it appeared that the deceased had been in the employ of the defendant as a motorman for several years. If the brake worked hard, or was defective, he must have known it. He. therefore, having, with such knowledge-of the defect,- taken the responsibility of working on the car, and assumed the risk arising therefrom, no liability on account of the-brake was incurred by the defendant. Powers v. Railroad Co., 98 N. Y. 274; Crown v. Orr, 140 N. Y. 450, 55 St. Rep. 834; Monaghan v. Railroad Co., 45 Hun, 113; 9 St. Rep. 672; Odell v. Railroad Co., 120 N. Y. 323, 31 St. Rep. 27; Freeman v. Mill Co., 70 Hun, 530, 53 St. Rep. 786; affirmed 142 N. Y 639, 60 St. Rep. 865. Hence the only question in the case"that requires consideration is that arising from the exclusion of the evidence offered by the plaintiffs. The court refused to allow the plaintiffs to show that the corporation failed to supply a sandman for cars running on Hoosick street, stating that he would exclude the matter of the sandman on the ground that, if one was not provided by the defendant, Windover must have known it, and therefore he assumed the risk resulting from the absence of such an "employe. As the trial court excluded all testimony on that subject, of course-we cannot know what evidence the plaintiffs would have produced if permitted. It was the duty of the defendant to supply the car-on which the deceased was employed as a motorman with sufficient and proper help, and with proper appliance and instrumentalities, to safely operate it. Flike v. Railroad Co., 53 N. Y. 549 ; Booth v. Railroad Co., 73 N. Y. 38; Whittaker v. President, etc. 126 id. 544; 38 St. Rep. 523; Coppins v. Railroad Co., 122 N. Y. 557 ; 34 St. Rep. 214. The decedent, as the employee of the dafendant, in the management of the ear, had the right to rely upon the assumption that the defendant had performed this duty. He did not, in the first instance, assume risks resulting from the failure of the corporation to do so. As Andrews, J., remarked in Booth v. Railroad Co., 73 N. Y. 40:

“ The rule that the servant takes risks of the service ‘supposes/ says Lord Oran worth, ‘that the master has secured proper servants and proper machinery for the conduct of the work. Coal Co. v. Reid, 3 Macq. 275.”

If, however, in the service of the defendant, Windover discovered that it had failed to furnish proper machinery and appliances for the car, or sufficient help, and after such discovery voluntarily continued in the employ of the corporation, under the authorities above referred to he must be deemed to have elected to have assumed the risks resulting from the neglect of the defendant to perform its duty. Thus it has been held that a servant of a railroad company cannot recover for injuries resulting from the unskillfulness of his fellow servant negligently emplojmd by the corporation, if he voluntarily remained in its service with knowledge of 'such fact. Haskin v. Railroad Co., 65 Barb. 129, affirmed 56 N. Y. 608; Laning v. Railroad Co., 49 id. 521. So, in this case, the decedent, having elected to remain in the service of the defendant with knowledge of the defective brake, cannot recover from the corporation for an injury resulting therefrom. The risk from the brake was apparent, and must have been known to and voluntarily assumed by him.

But we are unable to concur with the view taken by the trial court that the decedent assumed the risk resulting from the defendant’s neglect to employ a man to place sand on its tracks, in the absence of any evidence of facts indicating such an assumption. We think the judge should have received the evidence offered by the plaintiffs, and afterwards determined the question he assumed to decide in advance, if the facts proved by the plaintiffs should have shown that a sandman was required for cars of the defendant on Hoosiclc street, and that it was negligent in not furnishing such an employee. As we have already said, it was the duty of the corporation to supply the car with suitable machinery, appliances, and help with which to manage it; and the deceased, as an employee, in the first instance, could properly assume that it had performed this duty. He was not required to make a critical examination of those appliances, or to entertain doubts as to the car’s being properly equipped. He knew that the speed of the car could be regulated in two ways—by the brake and by reversing the power. He could properly assume, unless he knew otherwise, that those means provided by the defendant were sufficient. There was no evidence produced that he knew that a sandman was required. It was not proved that the car had ever run away with him, or that he knew that it or any other of defendant’s cars liad run away before the accident. We think the learned trial court was mistaken in assuming as a fact, in advance of the evidence offered, or which might have been produced, that Windover assumed the risk arising from the failure of the defendant to employ a sandman. Had the court received such evidence, a state of facts might have appeared showing such an assumption ; or, on. the contrary, the circumstances might have indicated that the deceased, without any knowledge of the necessity of a sandman, and believing that the defendant, as it was its duty to, had furnished the required instrumentalities to check the speed of the car, had not assumed a risk of which he was ignorant, or the evidence, if received, might have raised a question of fact for the jury as to such assumption. Laning v. Railroad Co., supra. In 14 Am. & Eng. Enc. Law, 843, it is said:

“ A servant does not, of course, assume the risk of any dangers from unsafe or defective methods, surroundings, machinery, or other instrumentalities, unless he has, or may be presumed to have, knowledge or notice thereof.”

In a note on the next page of the same volume it is also stated:

“And it may be observed in this connection that it is one thing to be aware of defects in the instrumentalities or plan furnished by the master for the performances of his services, and another thing to know or appreciate the risks resulting or which may follow from such defects. The mere fact that the servant knows the defects may not charge him with contributory negligence or the assumption of the risks growing out of them. The question is, did he know, or ought he to have known, in the exercise of ordinary common sense and prudence, that the risks, and not merely the defects, existed. Cook v. Railway Co., 34 Minn. 45; Russell v. Railway Co., 32 id. 230.

We think the above quotations, which are supported by many| authorities in the work in question, state the correct principle ap- ' plicable to such a case as this. Windover did not assume the risk in question unless he knew that the power to reverse and the brake were insufficient to prevent the car from running away, and that a sandman was required. It could not be properly assumed as a fact,1 in the absence of any evidence in that regard, that he did know. In the absence of such knowledge, the risk arising from the absence of the sandman was not an apparent one. In Haskin v. Railroad Co., supra, it appeared that the deceased knew of the unskillfulness of his co-employer, and after such knowledge voluntarily remained in the service of the corporation. We think,therefore, the court below erred in disposing of the case in advance of the evidence that might be produced, and in declining to receive the testimony offered by the plaintiffs.

The question arising in the case as to the contributory negligence of the deceased was, we think, under the facts shown, clearly for the jury.

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

PARKER, P. J., and HERRICK and MERWIN,. JJ., concur.

LANDON, J.

— The absence of a sandman was immaterial, because it was not shown that his presence was necessary. It was shown that the car was equipped with a distributing sand box, from which the motorman, could apply sand to the tracks, and plaintiff’s counsel did not offer to show that a sandman was also necessary. It would not be proper to allow the jury to infer the necessity of his presence in the absence of evidence tending to show it. Experience must have demonstrated whether both box and man are necessary in such cases, and evidence of its teaching must be obtainable. The jury should not be permitted to make a rule of law to suit themselves, or find a fact without evidence. Cumming v. Railroad Co., 104 N. Y. 669; 5 St. Rep. 717. I doubt, therefore, whether we should reverse.


author: PATTERSON, J.

text:
    Rutherford Stuyvesant, Resp't, v. New York Elevated Railroad Company et al., App'lts.

      (Supreme Court, Appellate Division, First Department,

      Filed April 24, 1896.)

    1. Evidence—Elevated railroad.
    In order to maintain an action to recover damages to property caused by the erection of an elevated road, it is incumbent upon the abutting owner to show that such property has not shared in the general increase due to normal causes, and the annual growth of neighboring properties off the line of the elevated railway; and that, notwithstanding the fact of there being some increase in the values of this land, further increase was retarded by the construction and operation of the road.
    2. Same.
    The effort to establish this claim cannot be made by instituting comparisons of rental values of the premises with those of specific properties located in widely-separated territory.
    3. Trial—Objections.
    In such case, an objection as calling for “ matter not within the issues/’ is sufficient.
    Appeal from a judgment in favor of plaintiff,
    E. C. James, for app’lts; W. G. Peckham, for resp’t
   PATTERSON, J.

Whatever ordinarily, may be the ad van» tage and propriety of bringing into one action all the proprieties of an owner of land abutting on a street on which there is an elevated railroad, and as to which properties it is claimed that casements have been taken for the uses of the railroad without compensation, they are in this cause unfortunately unavailable from the necessity which exists of reversing the judgment as to each separate piece of property, because of an error in the admission of testimony, which error radiates the whole ease, and affects each one of the fifty-seven parcels of land owned by Mr. .Stuyvesant and described in the complaint. It" appeared in evidence, and was found as matter of fact by the court, on the trial, that all of the properties mentioned in the complaint had increased in value since the defendants’ railway was built. To maintain the action it therefore became incumbent upon the plaintiff to show that his properties on Third avenue had not shared in the general increase due to normal causes, and the natural growth of neighboring properties off the line of the elevated railway ; and that, notwithstanding the fact of there being some increase in the values of his lands, further increase was retarded or prevented by the construction and operation of an elevated road. The effort to establish that claim could not be made by instituting comparisons of rental values of the premises, the subject of the action, with those of specific properties located in widely-separated territory; but that was allowed to be done in this case. All of the fifty-seven pieces of property involved here are situated on Third avenue between Eight and Twenty-Firsts. The plaintiff was permitted to compare the course of rental values of these properties, or many of them, with the rentals received by Columbia College from, its leaseholds on Fifth avenue between Forty-Seventh and Fifty-First streets and on Forty-Seventh street,—property situated in a section of the city so remote from Third avenue at and below Twenty-First street that its very distance from the plaintiff's premises makes the comparison inadmissible, even if comparisons were at all allowable. But, add to this the differences in the character of the properties, and the disparity becomes strikingly obvious. Mr. Stuyvesant’s houses are occupied as shops and cheap tenements.. The testimony is that the locality in which the buildings on Fifth avenue are situated has been “during the past ten or fifteen years one of the most fashionable centers for. residence property in the city. Some of the most prominent and wealthy social people reside in these houses. It lies between what is known as the ' Murray Hill’ locality and the Central Park.” The evidence, when offered, was objected to, and on specific grounds. In the Innes Case, 38 Supp. 286, decided at this present term of this court, but not yet officially reported, we had occasion tó say that a merely general objection, or one not calling the attention of the court to the precise question raised in the Jameison Case, 147 N. Y. 322; 69 St. Rep. 688, could not prevail on appeal; but here the precise ground was taken that brings this evidence within the condemnation of that case. Counsel for the defendant expressly objected to the testimony as to the rents of Fifth avenue lots under Columbia College leases, and placed it on the distinct ground that the question called for matter “ not within the issues.” The objection was overruled, and the error in admitting the testimony is fatal. That it was harmful cannot admit of doubt. It was evidence of a pointed character as to the course of ground rents and their increase. It did not effect only the award of damages for decrease of rental values, but it was a factor in the ascertainment of fee damage. The expert witness testified that there is a fixed ratio between rental and fee values, and, that ratio proven, it is or may be resorted to, either alone or in connection with other testimony, to determine the value of the fee of the property. The admission, therefore, of this evidence as to the Columbia College leases was a cardinal error, one that cannot be overlooked or avoided, and it calls for a reversal of the whole judgment. We have examined the record and the stipulations and admissions contained in it in vain to find even ¿he slightest evidence of a waiver oí the objection or exception we have considered.

Judgment reversed, and new trial ordered, with costs to appeb Hants to abide the event.

BARRETT, RUMSEY, and WILLAMS, JJ„8 concur. VAN BRUNT, P. J., concurs in result.


author: LAMBERT, J.

text:
    Chauncey N. Shipman & Company et al., Pl'ffs, v. Thomas Kelley, Def't.

      (Supreme Court, Erie Trial Term,

      Filed January, 1896.)

      1. Note—Extension op time.
    The taking of a note or written obligation of the debtor for a pre-existing debt, and as a representative of the debt, conditioned for future payment, raises the presumption that the same was given and accepted pursuant to an agreement that the time for the enforcement of the collection of such debt is postponed until the maturity of such note or obligation.

      2. Same.
    The drawing of a draft at three days’ sight by the creditor and the acceptance thereof by the debtor has the effect to bar the right of action om the original debt until default in the payment of the draft.
    3. Same—Surety.
    In such case, the giving of the note and the drawing of the draft operate as an extension of credit of the debt and are effectual to discharge a surety therefor.
    Wood & Gibbons, for pl’ffs; F. E. Stone, for deft.
   LAMBERT, J.

— The defendant is a and the limit of bis liability must be ascertained from the terms of the written undertaking. He assumed a burden without sharing in the benefits of the subject of the contract, and therefore had the right to prescribe the exact terms upon which he entered into the obligation,—to limit his liability either as to time, amount, or parties, —and, having done this, he has a right to insist on his discharge from legal liability in case the terms imposed have not been observed. The meaning of the language used in the contract of guaranty is both clear and ascertained, and the defendant is entitled to the application of a strict rule of construction. His liability depends upon whether or not the plaintiffs have, without his assent, done anything, either directly or by necessary implication, which may be said to have varied the terms of the principal contract for which he stood sponsor. If the plaintiffs have so far departed from the terms of the original agreement by giving terms of credit not contemplated -by the terms of the contract, then the defendant, even though he may have sustained no injury thereby, will be relieved from liability. By the terms of the undertaking, the defendant guarantied the payment of all bills for coal, to the-amount of $1,500 per month. The shipment of coal, the rendering of a bill therefor, and the nonpayment thereof by Haywood & Irish, subjected the defendant to an action for the recovery of the purchase price of the coal, provided the term of credit did not .extend beyond the period of three months.

By the terms of this condition we are brought to the only question urged by the defendant in exoneration of liability. Did the taking of the debtors’ notes for the bill rendered for coal, and the renewals thereof, for balances remaining unpaid, from time to-time without the consent of thesurety, discharge him from liability? If the giving of these notes, from time to time, suspended the plaintiffs’ right of action against Harwood & Irish for any given period, that would be such a departure from the terms of the defendant’s undertaking as would discharge him from liability. Dorlon v. Christie, 39 Barb. 610; Railroad Co. v. Burkhard, 36 Hun, 57; Place v. McIlvain, 38 N.Y. 96; Parmelee v. Thompson, 45 N. Y. 58; Hubbard v. Gurney, 64 Id. 458; Bank v. Hunsiker, 72 Id. 252; Iron Co. v. Walker, 76 Id. 521; Van Giessen v. Bridgford, 83 Id. 348; Bank v. Phelps, 86 Id. 484.

Many of the cases cited hold that the giving and acceptance of the debtor’s note, due in the future, have the legal effect to extend the term of credit of the original indebtedness, and bar a right of action thereon during such period; while the cases of Parmelee v. Thompson, supra, and Graham v. Negus, 55 Hun, 440; 29 St. Rep. 114, decided that the mere acceptance of a note of the debtor, representing a pre-existing debt, in the absence of an express agreement that the same be taken in extinguishment of the original debt, or any new consideration for the acceptance of the note, does not operate as an extension of the term of payment so as to bar a right of action thereon. Undoubtedly, the rule that the taking of the note for a pre-existing debt, or as substitute therefor, operates as an extension of time, must have its foundation in contract, express, or implied from the transaction, and this seems to the doctrine of all the cases. The conflict arises upon the consideration of what constitutes a valid contract for the extension or substitution. We see no substantial reason why the taking of a note or written obligation of the debtor for the amount, and as a representative of the debt, conditioned for future payment, should not give rise to the presumption that the same was given and accepted pursuant to an agreement that the time of the enforcement of the collection of such debt be postponed until the maturity of such note or obligation. A debt being due, with the right of immediate action for its collection, the debtor tendering, and the creditor accepting, his negotiable promissory note for the amount thereof, due at a future-day, there seems to ‘be no substantial reason, in law or justice, why it should not be inferred, as matter of fact, that the debtor requested, and the creditor granted, forgiveness of immediate payment.

Assuming the inference of contractual relation from the transaction of the delivery and acceptance of the note or obligation of the debtor, the reason then assigned to defeat the validity of such a contract, by some of the cases cited, is that there is an absence of present consideration to support it; that, in giving such a note or obligation, there is wanting the resulting benefit or disadvantage essential in the law to support a promise. In this conclusion we are unable to agree. While the debtor might be made liable for the debt under prior contract relations he could not be compelled to acknowledge his indebtedness by a higher grade of evidence, such as is furnished by a written obligation. In this the creditor might be benefited. Again, the availability of a negotiable note over that of an ordinary debt for sale or discount must be considered an advantage to the creditor. It is not essential to the validity of a promise that the advantage to the party for whose benefit the promise is made should be equal to the benefit or injury to be sustained by the other. It is sufficient that an advantage or benefit is to he derived by the party who is the recipient of such promise. Regardless of these considerations, if the case of Place v. Mcllvain, supra, is to be followed, the acceptance and retention of the notes given by Harwood k Irish to the plaintiffs would operate as an extention of credit of the debt that would be effectual to discharge the surety. Certainly, under the case last cited, the drawing of the draft at three days’ sight by the plaintiffs, and the acceptance thereof by Harwood k Irish, had the effect to bar the right of action upon the original debt until default in the payment of the draft.

The complaint in this case should be dismissed,.


author: PRYOR, J.

text:
    Edward J. Wessels, Pl’ff, v. Alfred Carr, Def't.

      (Supreme Court, New York Special Term,

      Filed March, 1896.)

    1. Pleading—Demurrer.
    In determining the sufficiency of the pleading demurred to, it must be assumed that the facts stated therein, as well as such as may by fair and reasonable intendment be implied from the allegations made, are true.
    8. Same.
    Where the complaint shows title to any redress in any form, it is good against a demurrer.
    3. Fraud—Election oe remedy,
    On discovery of fraud, the plaintiff has an alternative of remedies, either to rescind.the contract, or, affirming it, sue for damages. '
    Demurrer to complaint.
    Franklin Bien, pl’ff; T. G. Sheehan, for def't.
   PRYOR, J.

Insufficiency in substance is the ground of demurrer to a complaint which exhibits the following facts : That plaintiff recovered a judgment against the defendant for $1,237.49, which is still unpaid and unsatisfied ; that, on plaintiff endeavoring to collect said judgment, the defendant willfully, intentionally, and falsely represented that he was a poor man, and could not pay a dollar of his debts, but that, if plaintiff would accept $250 in full settlement of said judgment, he, the defendant, would procure a party to take an assignment of the said judgment for the said sum; that relying upon the statement of the defendant in regard to his financial ability to pay the said judgment, the plaintiff accepted the defendant’s offer, gave the defendant a release, and made an assignment of the said judgment to one William H. Mangels; that the $250 was paid, not by Mangels, but by the defendant; that the assignment to Mangels was intended to deceive plaintiff into believing that the defendant was a poor man, and unable to pay the judgment, and that, in effect, the assignment was for the benefit of the defendant; that the representation of defendant in regard to his inability to pay said judgment was false, and made with the intention of deceiving and defrauding the plaintiff; that in fact the defendant was a man of means and able to pay the said judgment in ful'1; and that by reason of the premises the plaintiff has suffered damages in the sum of $1,500. Obviously, here are all the constituents of an action for deceit, namely, “representation, falsity, scienter, deception, and injury.” Church, C. J., in Arthur v. Griswold, 55 N. Y. 400, 410 ; Brackett v. Griswold, 112 id. 454 ; 21 St. Rep. 791; Hickey v. Morrell, 102 N. Y. 454, 463. In determining the sufficiency of the pleading demurred to, it must be assumed that the facts stated therein, as' well as such as may by fair and reasonable intendment be implied from the allegations made, are true.” Milliken v. Telegraph Co., 110 N. Y. 403 ; 18 St. Rep. 328. “ To sustain a demurrer to a complaint it is not sufficient that the facts are imperfectly or informally averred, or that it lacks definiteness and precision, or that the material facts are augmentatively averred ; it will be deemed to allege what can by reasonable and fair intendment be implied from the allegations.” Marie v. Garrison, 83 N. Y. 14; Sanders v. Soutter, 126 id. 193 ; 37 St. Rep. 1. While the court may not, by implication, import an absent allegation into a complaint (Clark v. Dillon, 97 N. Y. 370), still “ pleadings are to liberally construed with a view to substantial! justice, or, in other words, with a view to get out the real truth' of the case, when it will not involve surprise or injustice to either! party” (PECKHAM, J., in Bowe v. Wilkins, 105 N. Y. 322, 328 ; 7 St. Rep. 539. But why recourse to rules of construction/ when the complaint is explicit in the statement of every fact es-‘ sential to the support" of the action ? Indeed,- the demuz-rant does not challenge the right of plaintiff on the facts pleaded to some relief, but the contention is that his only remedy is an action for cancellation of the assignment and release of the judgment. But,; if the complaint show title to any redress in any form, it is good' against the demurrer. Johnson v. Girdwood, 7 Misc. Rep. 651; 58 St. Rep. 338, affirmed by court of appeals, 143 N. Y. 660; 63. St. Rep. 866. On discovery of the fraud, plaintiff had an alternative of remedies ; that is, either to rescind the contract, or af* fii’ming it, sue for damages. Krumm v. Beach, 96 N. Y. 398, 406; Vail v. Reynolds, 118 id. 297, 302; 28 St. Rep. 707; Cooley, Torts, 503. He adopts the latter expedient, to the pursuit o£ which, manifestly, the assignment and. release of the judgment, instead of opposing an obstacle, are indespensible conditions. Such assignment and release, fraudulently procured, is the gravamen of the action.

Demurrer overruled, with leave to answer.'


text:
    George T. Collister, Pl'ff, v. Amelia A. Fasset, Def't.

      (Supreme Court, New York Special Term,

      Filed March, 1896.)

    1. Wills—Absolute bequest.
    Where a bequest was made to a wife in absolute terms, coupled with a 5t direction” out of the property given by the will to use so much thereof for the support and benefit of the plaintiff “ as my said wife shall from time to time, in her descretion, think best so to use,” held, that the apparent mandatory import of the ‘ ‘ direction” is nullified by an unlimited discretion in executing it„ which qualification is fatal to the creation of a trust.
    2. Same.
    Held, further, that an imperative duty imposed on the executors to pay plaintiff, out of the income of *> trust fund, a definite sum at fixed periods after the widow’s death, confirms the inference against an enforceable trust for the benefit of plaintiff during the widow’s life, emphasizing the discretion with which the widow is invested in contributing to plaintiff’s support.
    Demurrer to complaint.
    Wilson & Wallis, for pl’ff; Don Passos Bros. and John Murray Mitchell, for def't.
   PRYOR, J.

The provisionsof the will which affect the solution of the question in controversy are contained in the following paragraphs:

“ Fourth. I direct my wife, Amelia A. Scranton, out of the property hereinafter given and bequeathed to her by this will, to use so much thereof for the support and benefit of my niece, Georgie S. Oollister, as my said wife shall, from time to time, in her discretion, think best so to use.

“ Fifth. I give and bequeath to my executor and executrix hereinbefore named the sum of twenty thousand dollars ($20,000) upon trust, to invest the same, and to pay the net income thereof annually to my wife, Amelia A. Scranton, during her lifetime ; but on or after the death of my wife, Amelia A. Scranton, I direct my surviving executor to pay out of the net annual income of said twenty thousand dollars (20,000) as so invested, to my niece, Georgie S. Collier, if she shall then be unmarried, the annual sum of one thousand dollars ($1,000) in equal quarterly installments of two hundred and fifty dollars ($250) until the marriage of my my said niece, George S. Collister; and if my niece shall never marry, for and during her natural life; but if my said niece,' Georgie S. Collister, shall at the time of the death of my wife, Amelia A. Scranton, be married, then I direct that my said niece, Georgie S. Collister, shall take nothing under this bequest.”

“ Eighth. I give, devise, and bequeath all the rest, residue, and remainder of the estate, both real and personal, of which I shall be seised or possessed, or to which I shall be entitled at the time of my death, to my wife, Amelia A. Scranton, absolutely.”

The contention of the plaintiff is that the language of the will (fourth paragraph) is imperative, and that it impveses the property devised and bequeathed to the defendant with a trust in favor of the plaintiff which a court of equity must enforce. The tendency of the courts in modern times is to restrict, rather than extend, the doctrine of precatory trusts. Foose v. Whitmore, 82 N. Y. 405; 2 Pom. Eq. Jur. § 1015. The plaintiff lays especial stress upon the word “ direct,” construing it as equivalent to a command, but it is merely precatory. 2 Pom. Eq. Jur. § 1014. As the subject of inquiry is the intention of the testator, we are to give the term the meaning which he contemplated, and to ascertain that meaning we are not to pause upon this single word, isolated and alone, but are to construe it in association with its context. “ Precatory words may be used which, standing alone, would, under the decisions, create a trust; but they may be qualified and controlled by other expressions showing that the gift is absolute, and that everything is left to the discretion of the devisee or legatee.” 2 Pom. Eq. Jur. § 1016. Such is the case before us. The devise to the wife is in absolute terms and is coupled with a “ direction ” of which the apparent mandatory import is nullified by an unlimited discretion in executing the direction. Plainly, the contributions for the support and benefit of the plaintiff are left to the independent volition of the defendant; and this qualification of “direction” is fatal to the creation of a trust. The adjudication in Lawrence v. Cooke, 104 N. Y. 632 ; 6 St. Rep. 772, is decisive of the case. There, after an absolute gift of the residuary estate of the defendant, the testator added: Y

“ I commit my granddaughter [the plaintiff] * * * to the charge and guardianship of my daughter [the defendant], * * * I enjoin upon her to'make such provisions for said grandchild out of my residuary estate, * * * in such manner and at such times and in such amounts as she may judge expedient and conducive to the welfare of said grandchild, and her own sense of justice and Christian duty shall dictate.”

The court held that by this disposition no trust was created, and no charge imposed upon the property passing to the defendant; saying, per Bapollo, J.:

“All these matters were left wholly to the discretion of the defendant, uncontrolled by an.y consideration, except what her own sense of justice and Christian duty shall dictate. It was the will of the testator that the defendant should be the sole judge of the manner in which provision for the plaintiff should be made, at what time it should be made, and to what amount. It was beyond the power of any court to substitute its discretion for hers, and no trust was created which a court of equity could execute contrary to her judgment.”

In Phillips v. Phillips, 112 N. Y. 197; 20 St. Rep. 301, the court, distinguishing the case from Lawrence v. Cooke, said, per Finch, J., that the important and vital inquiry is whether the bequest “so depends upon the discretion of the general devisee as to be incapable of execution without superseding that discretion.” If so, there “ can neither be a trust nor charge.” Manifestly, in the present case, the court cannot enforce the asserted trust in favor of the plaintiff without “superseding” the discretion allowed by the will to the defendant.

Plaintiff argues that the provision for payment to her by the executor of $1,000 annual income on the death of the testator’s widow tends to demonstrate the trust for which she contends. On the contrary, the provision confirms the inference against the trust. The fact that the testator imposed an imperative duty on the executor to pay the plaintiff a definite sum at fixed period emphasizes the discretion with which he invested his wid'ow in contributing to the plaintiff’s support. Luring the life of his widow he submitted to her pleasure how far she would reduce her resources fo£ the benefit of the plaintiff; but his widow, dead, was no longer the object of solicitude; and he then bound his executor by a fetter from which he left her free.

Demurrer sustained, and judgment for defendant. No costs.


text:
    John J. Trueb et al., Pl'ffs, v. New York Asbestos Manufacturing Company, Def't.

      (Supreme Court, New York Special Term,

      Filed April, 1896.)

    'Pleading—Joint cause of action—Failure to aver character.
    If the interest of plaintiffs in a cause of action be obviously jointed, upon demurrer it will not be deemed several because not characterized in terms as joint.
    Demurrer to complaint.
    Read J. Dilworth, for pl’ffs; Rudolph Loreck, for def't.
   PRYOR, J.

By demurrer the complaint is challenged for combining two causes of action which belong severally to the respective plaintiffs. As “their cause of action,” the plaintiffs allege that, “ at the request of the defendant,” they rendered services “reasonably worth the sum of $348.60,” “which the defendant agreed to pay.” A defect in pleading, to be obnoxious to demurrer, must appear on the face of the pleading. Code, § 488. In respect of matters of form, a pleading must be liberally construed, with a view to substantial justice between the parties (Clark v. Dillon, 97 N. Y. 370, 373), and must be deemed to allege what can be implied from its statements, by a reasonable and fair intendment (Marie v. Garrison, 83 N. Y. 14; Lorillard v. Clyde, 86 N. Y. 384; Milliken v. Telegraph Co., 110 N. Y. 430; 18 St. Rep. 328; Sanders v. Soutter, 126 N.Y. 193; 37 St. Rep. 1.

Is it apparent, on the face of the complaint, that it unities causes of action attaching severally to each of the plaintiffs?. In terms, the averment is of a single request to the plaintiffs, of one cause of action against both, of a claim by plaintiffs of an intergral sum of $348.60, and of a promise by the defendant to pay them that sum. A joint interest in the plaintiffs and a common right to relief is manifest beyond any decent pretense of misapprehension. Code, § 446. But, if the meaning of the complaint be susceptible of misconstruction, that sense must be accepted which sustains the pleading. Cases supra. Possibly the complaint was open to a motion to make it more definite and certain (Code, § 546); but it must stand against a demurrer, else the treacherous technicalities of common-law pleading are as prevalent as before the reformed procedure.

Demurrer overruled, with leave to answer on payment of costs.


author: WILLIAMS, J.

text:
    August Wuensch, App'lt, v. Morning Journal Association, Resp't.

      (Supreme Court, Appellate Division, First Department,

      Filed April 24, 1896.)

    1. Pleading—Libel—Scandalous matter.
    Allegations, which are clearly proper for the purpose of justification or mitigation of damages, cannot be stricken out, even though, in their nature, scandalous.
    2. Libel—Damages.
    In an action for libel, there can be no mitigation of actual or compensatory damages. It extends or relates only to punitive or exemplary damages.
    3. Same—Character of plaintiff.
    In the absence of proof as to what the plaintiff’s character was before the publication, the jury must assume that he was possessed of a fair character.
    4. Same.
    The defendant has the right to attack plaintiff’s character and show that it was not such as the law would otherwise presume it to he, but he can only do so in two ways: (1) By cross-examination of the plaintiff himself, if he should he used as a witness; (2) By calling witnesses as to the general reputatation of the plaintiff at and prior to the time of the alleged publication.
    5. Same.
    Witnesses cannot be called to prove specific acts on the part of plaintiff, either by way,of attacking his credibility as a witness, or liis character.
    Appeal from an order denying a motion to strike out paragraphs of the defendant’s second amended answer, as irrelevant, redundant and scandalous.

      The action was brought to recover damages for an alleged libel. The article alleged to have been libelous was published in the Morgen Journal, a German newspaper conducted by the defendant in New York city. The article was of considerable length, and was set out in the complaint in full, in German, to which was added a translation into the English language. The idea ex-nressed in the article were, substantially: That plaintiff was in trouble; received ingratitude from his adopted daughter, whose husband wanted to relieve plaintiff of $25,000. That plaintiff was a wealthy pasteboard-box manufacturer, and a model of an old ,man in love. That he was held in high esteem in the saloons of the East side, because he was a great spender, and his business aforesaid allowed him such luxuries. That he did not speak favorably of the Morgen Journal, because it had published, at various times, adventures in which plaintiff figured in the courts as a suffering or wronged hero. That it would not be a libel to write that the plaintiff still had a young heart. Than his pocketbook permitted him to be the benefactor of ladies, and he did not hide his light under a bushel. That he was very often seen in the German theater with yonng ladies of whom he could be the father; and the most remarkable thing about these frequently different darlings was that, as a rule, they were acquainted with many other gentlemen, but this was the business of the plaintiff, and did not concern any one else. That generally he did not receive any gratitude for the great or little fatherly interest he showed towards the feminine world. Often his efforts of protection entangled him in lawsuits, and this he even had to experience at the hand of his own niece and adopted daughter. That he took her (Dora Ritter) into his house when she was a child under four years of age, and allowed her to enjoy all the luxuries which a rich pasteboard-box manufacturer could afford; and when she grew up she married in 1886, against the plaintiff’s will, a poor but handsome Portuguese, John Dulany, but the marriage was not a happy one, and Dora returned to plaintiff several times, but was always persuaded by her husband to return to him again. That her husband was not friendly to plaintiff, and went so far, in his hatred, to threaten plaintiff with a suit for larceny because his wife’s watch had disappeared in the plaintiff’s house, on which occasion he also charged plaintiff with being more than an uncle to his niece. That at the beginning of' the summer a separation again took place between the young couple, and the wife began a suit for a divorce. When the same came to trial, January 19th, the husband succeeded in inducing his wife to withdraw the suit. During the pendency of these proceedings the plaintiff opened a letter addressed to the wife, and afterwards was brought before the United States grand jury for this offense, but was honorably discharged by that body. That the latest in this lovely, ideal family life was that the plaintiff would be sued for $25,000 damages by the husband for alienating the affections of his wife. That plaintiff was very much irritated over the whole matter, was a good-natured soul, and detested in. gratitude more than having the matter spoken of in the news. papers, but he must console himself with the idea that all good people must suffer, and that plaintiff, who had become rich, could not expect to be an exception. The motion was to strike out paragraphs 17 to 26, both inclusive, in defendant’s answer, which were substantially as follows: (17) That for many years prior to the publication, plaintiff frequently drove in the parks of New York city, and appeared in other public places, and in saloons and theaters, with women other than his wife. (18) That during the same time he was a habitual frequenter of wine and beer saloons, and had spent money freely in such saloons, and had a reputation among saloon keepers of being a free spender of money therein. (19) That during the same time he had spent large sums of money in supporting, entertaining, and associating with young women. Between 1875 and 1885 he associated with Louise Kramer, since deceased, and spent large sums of money upon her, supplied her with money, purchased clothes for her, furnished a room for her in a house near his own, and frequently took h'er to the German theater, and otherwise entertained her. After her death he visited' and associated with an actress, Bertha Meyer, spent a large sum of money upon her, purchased wearing apparel and jewelry for her, and otherwise entertained her and supplied her with money.' In 1886, and for two years thereafter, he constantly visited and and associated with a young woman, Flora Beck, and spent large sums of money upon her, purchased clothes and jewelry for her, supplied her with money,' and entertained her in numerous ways. Thereafter, and prior to the publication, he visited and associated with a young woman, Pauline Wendling, and spent large sums of money upon her, and supplied her with money, clothes, and jewelry, and escorted her to the theater, and otherwise entertained her. In or about the year 1889 he visited and associated intimately with a young married woman, Minnie Clarke, known as Weavil; spent large sums of money upon her; supplied her with money for personal expenses; paid the rent and furnished for her a house, 2154 Lexington avenue, and paid for maintaining the house; and supplied her with clothing, jewelry, horses, carriages, a dog cart; escorted her to theaters, balls, restaurants, and entertained her in various ways. (20) The foregoing were some instances in which he associated with,, and made companions of, young women; and, if permitted by court, defendant would prove others on the trial. So far, the allegations were a part of the second separate defense, and in justification. (21) The foregoing,' with other allegations of the second defense, were here repeated in the third separate defense, and alleged in mitigation of damages, and then there were added: (22) For many years prior to the. publication the relations between the plaintiff and women named' in foregoing paragraphs were notorious, and a matter of common gossip among the acquaintances and neighbors of the plaintiff; and he had the reputation among his neighbors and acquaintances, of associating intimately with, and spending large sums of money upon, women other than his wife. (23) All facts pleaded herein, as mitigation were known by defendant before publication, and bad been communicated to defendant by trustworthy persons, and were believed by defendant to be true. (24) in a fourth separate defense, alleged in reduction of damages, were repeated all the allegations of the foregoing third separate defense, except paragraph 23. Then followed: “(25) Since publication, plaintiff has visited and associated with a young woman, Ethel Moore, and has often appeared with her in public, driven with her in the parks of Hew York city, escorted her to the theater and entertainments, visited saloons and restaurants with her, and on December 14, 1890, was with her in a house of ill-fame in West Forty-ninth street. (26) And thereby plaintiff’s relations with Ethel Moore have, since publication, been matters of common notoriety and gossip among plaintiff’s acquaintances and neighbors.”
   WILLIAMS, J.

— Paragraphs 17 to 30, both inclusive, are a part of the second defense in the answer, and are alleged in justification of portions of the alleged libelous publication. They are proper allegations for this purpose as will appear from a mere reading of the publication and the allegations. They allege mate 4ers which defendant desires to prove, to show the troth of some-of the matters published, and being proper for such purpose should not be stricken out even if they are in their nature scandalous.

Paragraphs 21 to 23, both inclusive, repeat these same allegations and add other allegations by way of mitigation of damages. They are clearly proper for this purpose, and under section 536 of the Code, could not he proved unless alleged in the answer.They should not be stricken out even if in their nature scandalous. It is not the fault of the defendant that he is obliged to insert allegations in his answer of matters he needs to prove on trial in the proper defense of the action.

Paragraphs 24 to 26, both inclusive, constitutes the fourth separate defense, and are alleged in reduction of damages. The facts alleged are not competent and could not be proved upon the trial for the purpose for which they are alleged. The allegations in paragraph 24 are of specific acts affecting the character of plaintiff occurring before the alleged libelous publication, and those in paragraphs 25 and 26 are of specific acts occurring after su'ch publication. They are none, of them competent to be proved in mitigation of punitive or exemplary damages, or in justification of the publication. They are not alleged as such but merely in reduction of actual or compensatory damages. The rule in this class of actions is that if the publication is not justified, the plaintiff is entitled to recover his actual or compensatory damages in any event. There can be no mitigation of this kind of damages. Mitigation extends or relates only to punitive or exemplary damages. A party, if entitled to such actual or compensatory damages, must be awarded such damages as the jury may find naturally and necessarily flow from the publication, for injury to the plaintiff’s reputation and character. In the absence of proof as to what the piaintiff’s character was before the publication, the jury must assume that the plaintiff was possessed of a fair character. The defendant would have the right to attack his character and show it was not such as the law would otherwise presume it to be but he could only do so in two ways: First, by cross-examination of the plaintiff himself if he should be used as a witness, and such cross-examination might extend to any specific acts occurring before or after the publication down to the trial, as bearing upon his credibility as a witness, as well as upon his character, for injury to which damages are sought to be recovered.

Second, by calling witnesses as to the general'reputation of the plaintiff at and prior to the time of the alleged publications. "W itnesses could not be called, however, to prove specific acts on the part of. the plaintiff occurring before or after the publication, either by way of attacking his credibility as a witness, or his character, for damages to which a recovery is sought. It follows, therefore, that the facts alleged in this fourth separate defense are improper and should have been stricken from the answer. Yery likely this separate defense was subject to demurrer, and if there was no question made as to the matter being scandalous, the motion to strike out might properly have been denied on the ground that demurrer was the only proper remedy to relieve the answer from the allegations. But being of the character known as libelous, we think the court should have applied this -remedy by motion to strike out, in order to remove the matter from the record. .<

The order appealed from should be modified so as to provide for the striking out of the paragraphs 24 to 26, both inclusive, and as modified affirmed, without costs.

VAN BRUNT, P. J., BARRETT, RUMSEY and PATTERSON, JJ., concurred.

Order modified as directed in opinion and as so modified affirmed, without costs.


author: HARDIN, P. J.

text:
    Jehial Sackett, Resp'ts, v. Elijah Thomas, App'lt.

      (Supreme Court, Appellate Division, Fourth Department,

      Filed April, 1896.)

    1. Appeal—Conflicting testimony.
    Findings of fact by referee, sustained by the evidence, will not be disturbed on appeal, where as to some of them the testimony of the parities is conflicting.
    2. ÜAMAGes—Nominal.
    In the absence of any evidence as to the extent of the damages sustained by the plaintiff, only nominal damages should be awarded.
    3. Appeal—Modification of judgment.
    In such case, the .court has power to modify the judgment in this respect.
    Appeal from a judgment in favor of plaintiff for the recovery of the premises described in the referee’s report, and for five dollars damages.
    The action was brought in ejectment to recover possession of a strip of land. The parties owned adjacent farms, situated in the town of Hanover, in the county of Chautauqua, and the real conttroversy is over the line between the lands of the respective parties. Besides the recovery of the premises described in the referee’s report there was an award of five dollars damages to the plaintiff
    George E. Towne, for app’lt; W. S. Thrasher, for resp’t.
   HARDIN, P. J.

Appellant has excepted to the referee’s findings of fact Upon a careful perusal of the evidence we are of the opinion that it sustains the conclusions of fact reached by the referee, (Roosa v. Smith, 17 Hun, 138; Reynolds v. City National Bauk, 71 id. 390; Penfield v. Sage, id. 575; Burton Co. v. Cowan, 80 id. 392; Thompson v. Vrooman, 49 St. Rep. 537; 21 Supp. 179; Teeter v. Teeter, 47 St. Rep. 580.) As to some of the essential questions involved in the controversy there was a conflict in the evidence, and it was for the referee to determine that conflict and to apply the evidence in connection with the solution made by him of the conflicting evidence. We think his conclusions of fact should be sustained.

It is contended, however, in behalf of the appellant that the findings of fact are not supported by the evidence, and, therefore, may be reviewed and the conclusions based thereon set aside under the provisions of the Code of Civil Procedure. (§ 993.) As to some of the essential facts which the referee was called upon to find, the testimony of the parties was in conflict. The defendant in his testimony stated that the lane averaged from two to three rods wide, while the plaintiff testified that the lane was two rods wide. As we have already remarked, we see no occasion to disturb the conclusions reached by the referee upon the evidence. His opinion clearly and satisfactorily discusses the questions of fact.

The defendant has excepted to a finding of the referee, to the effect that the plaintiff has suffered damages in the sum of five dollars, by reason of the unlawful withholding by the defendant of the lands mentioned; and there is also an exception taken by the defendant to the conclusion of law stated in the report, wherein the referee finds and states that the plaintiff is entitled to recover the sum of five dollars damages for the unlawful withholding and detention of the lands. We look through the case in vain for any evidence to support the finding of fact on the question of damages. We see no evidence tending in any way to establish that the plaintiff had suffered damages to the extent of five dollars by reason of the withholding of the lands from the plaintiff, awarded by the report of the referee. In the absence of any evidence as to the extent of the damages sustained by the plaintiff we think the referee should have awarded only nominal damages, .to wit, six cents. In that respect we think the report of the referee and the judgment entered thereon should be modified, and that the recovery of the damages should be reduced to the sum of six cents; There is undoubted power in the court to modify the judgment in that respect. Code Civ. Proc. § 1317; Fischer v. Blank, 138 N. Y. 671; 52 St. Rep. 339. Beyond the modificatiou suggested we are of the opinion that the report of the referee should reniain and the judgment as modified should be affirmed.

All concur.

Judgment modified so as to reduce the damages to six cents, and as so modified affirmed, without costs to either party on this abpeah


text:
    In the Matter of the Application by Mary Alice Almont Fleming to Compel Payment of Money in the Custody of the Court.

      (Supreme Court, New York Special Term,

      Filed March, 1896.)

    1. Descent of property—Murder of ancestor by heir.
    No one shall he permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime.
    2.. Same.
    The application of an heir, who has been indicted for the murder of his ancestor, for the payment of his distributive share of such estate, will be denied if made pending such indictment. ' '
    3. Same.
    When accusation of crime is involved in concurrent criminal and civil actions, the trial of the civil will be suspended until the termination of the /criminal prosecution.
    Application by Mary Alice Fleming to compel payment to-her of money in the custody of the court.
    Gratz Nathan and John C. Shaw, for petitioner; George H. Yeaman, for def’t.
   PRYOR, J.

In deference to the earnest and persuasive appeal of counsel for the petitioner, the disposition of this matter has been delayed until opportunity was afforded for a thorough examination of the argument submitted in support of the application. Such examination has been made, and, upon due research and reflection, I reach the conclusion to adopt the order intimated by the learned referee in his opinion. It is impossible to distinguish the case,' in principle, from the reason of the decision in Riggs v. Palmer, 115 N. Y. 506; 26 St Rep. 189, namely, that. “ no one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime.” The petitioner is indicted for the murder of her mother, upon the termination of whose life the petitioner was to have the property in question. By the murder of her mother, if so it be, the petitioner at once secured property, which she would have lost, had the life tenant survived her, and accelerated the possession and enjoyment of that property. It is insisted that the case is discriminated from Riggs v. Palmer by the circumstance that Palmer had been convicted- of the murder, whereas the petitioner is only indicted. But the difference is-of no significance. In a civil action, involving an issue of fact between private parties, the determination of that fact is a criminal prosecution by the people is not even evidence, much less a conclusive adjudication, ot the fact. Hence the conviction of the petitioner on trial of the indictment for the murder of her mother would not be legal proof of the fact of the murder in this proceeding, and between these litigants. 1 Whart. Ev. § 776; Wells, Res Adj. § 420. In Riggs v. Palmer, although the defendant had been convicted of the murder, the issue of fact whether he committed the murder was tried over again before the referee, and was determined upon the proofs then produced. The essential and the decisive fact in the case, shown by the indictment, is that the petitioner is charged with the criminal destruction of the life, the expiration of which was the indispensable condition of her right to the possession and enjoyment of the fund in controversy. Livingston v. Tucker, 107 N. Y. 549, 550; 12 St. Rep. 498. If she murdered her mother, she is not entitled to the possession and enjoyment of that fund. If she be innocent of the murder, she is entitled to such possession and enjoyment. Her right, therefore, cannot be adjudged until the determination of this issue of fact. The referee finds that the legal title to the fund is in the petitioner, but this alone gives her no indefeasible right to the possession and enjoyment of it. In Ellerson v. Westcott, 148 N. Y. 149, 153, the allegation sought to be introduced into the pleading was that “ the defendant had caused the death of the testator, to enable her to come into possession of the estate devised to her.’ Assuming the fact, the court, per ANDREWS, C. J., speaking of its effect, said “ that a court of equity will intervene, and deprive her of the benefit of the devise. It will defeat the fraud by staying her hand, and enjoining her from claiming under the will. But the devise took effect on the death of the testator, and transferred the legal title and right-given her by the will. The relief which may be obtained against her is equitable and injunctive. The court, in a proper action, "will, by forbidding the enforcement of the legal right, prevent her from enjoying the fruits of her iniquity.” By her application .for the fund, the petitioner solicits the equitable intervention of the court, and compels consideration of the fact that would defeat her claim to equitable relief. The application being to the court in equity, it were an available and insuperable ground of refusal that to grant it would be to concede to the petitioner “ the fruits of her iniquity.” Until, then, the fact be ascertained whether the petitioner murdered her mother, her right to the possession and enjoyment of the fund cannot be determined. But a trial of this issue in a civil proceeding pending the indictment might be of private and public mischief. Less evidence of the fact of the murder would suffice in the civil than in the criminal action. If the fact be found against the petitioner in this proceeding upon a mere preponderance of evidence, it might be of prejudice to her on the trial of the indictment, to a conviction upon which proof beyond a reasonable doubt is requisite. If it be answered that this is a hazard which the petitioner is willing to incur, then it is remarked that her acquittal in this proceeding might be—nay, probably would be—of prejudice to public justice on the trial of the indictment. In either view, therefore, the issue raised upon the present application should be first agitated arid determined on the trial of the indictment. Indeed, it is a prevalent rule of public policy that, when an accusation of crime is involved in concurrent criminal and civil actions, the trial of the civil will be suspended until the determination of the criminal prosecution. Wells, Res Adj. § 420. To the suggestion that some of the parties interested in the fund, in case of the incapacity of the petitioner, do not appear in opposition to its receipt by her, the response of the referee is satisfactory.

Application denied, with leave, however, to renew when the indictment is disposed of. No costs.


text:
    G. R. Scott, App'lt, v. John Scott, Resp't.

      (Supreme Court, Appellate Division, First Department,

      Filed March 6,1896.)

    1. Bills and notes—Bona fide purchaser.
    Where a person, when he takes the transfer of a note to himself and others, knows of a want of consideration therefor, he is not a hona fide transferee of the note, though the other parties interested in the transaction had no notice thereof
    2. Same.
    To constitute a bona fide purchaser, it must appear that the plaintiff took the notes before maturity, in good faith, and without notice of the want of consideration, and made advances thereon, relying upon them.
    Appeal from a judgment entered on a verdict directed for defendant, and from an order denying a motion for a new trial on the minutes and for surprise.
    The action was brought upon four promissory notes, made by the defendant, payable to the order of the Port Aranus Company, and by that company transferred to the plaintiff,—one note bearing date November 17, 1890, and the other three, December 13," 1890. The notes were all payable five years from date, with interest annually. Each note contained a statement that it was given for the purchase price of lands therein described, conveyed by the payee to the maker at the time the note was given, and declaring that a vendor’s lien was thereby expressly given to secure the payment of the note. The defense was that the notes were without consideration, the lands therein declared never having been conveyed to the maker of the notes. Upon the trial the notes were proved and put in evidence, and the plaintiff rested. The defendant then gave evidence establishing the following facts: That the notes were delivered to Ropes, the president of the payee,; who agreed to send the deeds of the lands described in the notes to the defendant in New York city; that these deeds were never made or delivered to the defendant, and the lands described in the notes were never conveyed to him ; that some of these lands were then, and ever since have been, owned by this plaintiff, and the other lands then were, and ever,since have remained, the property of the payee, or other parties; that the defendant was not acquainted with the plaintiff, and never knew that he had possession of the notes until this action was commenced; that, about the time these notes were given, the plaintiff was quite frequently at the office of the payee, being engaged in aiding the payee in raising money to complete the erection of an hotel, that, soon after the notes were given, and while they were still in the safe in the payee’s office, the plaintiff was present when the notes were subject of discussion, that his attention was then called to the fact that these notes were given for the purchase price of lands some of which belonged to him, and he replied, “That is all right; we can fix that,” or “That is easily fixed.” The notes appear to have been transferred to the plaintiff by the payee about the 1st of January, 1891, and were kept by him until the fore part of 1892, when they were sent to the attorneys in New York city, and this action was brought thereon. The plaintiff, in rebuttal, offered to prove that the notes were transferred to him, as collateral security to himself and others, for whom he acted as trustee, for moneys to be raised by them and advanced to the payee, to be used by him in the completion of an hotel; that the money was so raised, and advanced to the payee, and by him used in completing the hotel; and that the persons for whom the plaintiff acted as trustee had no knowledge or notice of the want of consideration for the giving of the note, and relied upon the same as collateral security in acting with the plaintiff in the raising and advancing of the money to the payee. This evidence was objected to by the defendant, and excluded" by the court, under plaintiff’s exception. The complaint was thereupon dismissed, upon the ground that there was no consideration for the giving of the notes, and that plaintiff took the transfer with knowledge or notice of such want of consideration. The plaintiff excepted to the direction of the verdict, but made no request to submit any question of fact to the jury. A motion for a new trial on the minutes was made and denied, and thereafter a motion was made, upon affidavits, for a new trial on the ground of surprise. This latter motion was also denied. A judgment was entered on the verdict, and this appeal was taken.
    Lncien Birdseye, for app’lt; Chas. E. Lydecker, for resp’t.
   WILLIAMS, J.

There seems to be no but that there was an entire want of consideration for the giving of the notes. They were given, as therein expressed, for the purchase price of lands therein described, and the lands were never conveyed to the maker of the notes, but are still owned by the plaintiff, or the payee of the note, or by other parties. The evidence also shows conclusively that the plaintiff had notice, before he took the transfer of the note, of this want of consideration. The consideration was plainly stated in the notes themselves, and the plaintiff’s attention was called to the fact that some of the lands, at least, were owned by himself, and could not,0therefore, be conveyed to the maker of the notes. He knew that they had not been so conveyed, because they could not be, without his own personal act in conveying his title thereto. He was thus put upon inquiry as to the consideration of the notes having been paid, and could not, in taking the transfer, claim to be himself a bona fide transferee of the notes.

It is said, however, that the other parties interested with the plaintiff in the transaction were not shown to have been purchasers with notice of such want of consideration. Our attention is called to the cases of Constant v. University, 111 N. Y. 604: 20 St. Rep. 211, and Slattery v. Schwannecke, 118 N. Y. 543; 30 St. Rep. 4, where it was decided that a principal would, not be charged with the knowledge of his agent, acquired, not while he was engaged in the business of his principal, but while he was transacting business for other parties. Here, however, the knowledge of the plaintiff was acquired while transacting the business of his principals, if he might be regarded as their agent at all. This action is not brought by such alleged principals, but by the plaintiff, the alleged agent himself, in his own interest, as alleged in the complaint; and the only question is whether he is entitled to recover in his own right. When the other parties alleged to have been his principals shall come into court, and allege their interest in the notes, and attempt to recover thereon, it will then be time to consider their-rights, and whether they shall be permitted to enforce the notes. The fact being undisputed that the notes were given without consideration, it must appear that the plaintiff took the notes before maturity, in good faith, and without notice of the want of consideration, and made advances thereon, relying upon them; otherwise, he would not be entitled to enforce payment of the notes by the maker thereof. It does not seem to us, therefore, that the evidence offered by the plaintiff, and excluded by the court, was material, or would have changed the result if it had been received. The court properly dismissed the complaint upon the grounds stated.

We think the trial court properly denied the plaintiff’s motion for a new trial on the ground of surprise, for the reasons stated in its opinion. There could not well have been any surprise. The plaintiff knew what the issues were, and, if he desired to give any evidence with reference thereto, he should have been prepared to give it on the trial.

The judgment and order appealed from should be affirmed, with costs. All concur.