author: Yah Brtjht, P. J.

text:
    Robert M. G. Walford, Resp’t, v. Frank C. Harris, Individually and as Trustee, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed May, 1894.)

      Í. PABTHBRSinr— CONVERSTOK.
    A partner cannot convert the assets of liis firm by simply keeping them in possession.

      3, Same—Sights of partners inter sb.
    His co-partners cannot compel him to pay over, where it appears that ' the firm is indebted to him, except such amount as, on an accounting) is found rightfully to belong to them,
    3. Same.
    Individual items cannot be taken from the firm affairs and made the subject of an independent proceeding.
    4. Same—Special powers op attorney.

      ' The ordinary mutual rights and obligations of partners inter se are not changed by the giving of special powers of attorney to one of them to close up the firm Jbusiness.
    Appeal from interlocutory judgment entered upon report of referee.

      R. P. Harlow, for app'lt; H. H. Whitman, for resp’t.
   Yah Brtjht, P. J.

his action was brought to compel an accounting by the defendant, H. B. Bailey, in reference to certain co-partnership transactions, and also for an accounting by the defendant Harris, as attorney in fact of the plaintiff and the said Bailey. The defendant Harris by his answer demanded a general accounting of all the transactions of the plaintiff Bailey and himself. The referee, in his report gave a judgment against the defendant Harris for money, decided that Harris was not entitled to certain rights claimed by him, and that a referee should be appointed to take and state the accounts of all dealings between the plaintiff and the defendants Bailey and Harris, and an account between the plaintiff an<i the defendant Bailey, and the defendant Harris, as attorney in fact. A judgment was duly entered in accordance with this report, and from this judgment the present appeal is taken.

The facts upon which the rights of the parties depend, so far as they are affected by this appeal, seem to be undisputed, and they are as follows: Prior to the 31st of December, 1886, the plaintiff and the defendants Bailey and Harris had been .copartners, composing the firm of H. B. Bailey & Co., which, in this proceeding, has been called number 1. On that day the firm was ■dissolved by mutual consent, the 'defendant Harris retiring from the firm, retaining an interest, however, in certain .assets belonging to the firm. At the time of the retirement of Harris from said firm of H. B. Bailey & Co. No. 1, an arrangement was made between the plaintiff and the defendants Harris and Bailey that the plaintiff and the defendant Bailey should liquidate the affairs of the firm No. 1; and a new firm was formed between the plaintiff and the defendant Bailey, who continued the business under the same firm name, called No. 2, which firm proceeded to and did act as liquidators of the firm of H. B. BaileyCo. No. 1, down' to the 22nd of March, 1890. At the time of the retirement of Harris it appeared that the concern, owed him a considerable amount of money. On ths 22nd of March, 1890, the firm of H. B.Bailey & Co. No. 2 was dissolved by mutual consent, and upon the same day the plaintiff Walford and the defendant Bailey gave to the defendant Harris a power of attorney to collect the assets of the firm of H. B. Bailey & Co. No. 1, and on their receipt to apply and pay over the same to the persons who might "be legally entitled thereto. Upon the same day the same persens gave another power of attorney to the defendant Harris, authorizing him to take any proceeding for the recovery or satisfaction of certain claims, debts, outstanding accounts and bills receivable, particularly mentioned in said power of attorney, some of which belonged to the firm of H. B. Bailey & Company No. 1, and others to the firm of H. B. Bailey & Company No. 2. And said attorney was empowered by said instrument to apply and pay over the proceeds collected to the creditors of the firm of H. B. Bailey & Company, and to such persons as might be legally entitled thereto, before any distribution or disposition of said funds or moneys was made to said Bailey or Walford or to said Harris. On the same day a third paper was executed by all the above parties, by which they mutually covenanted and agreed that they should each of them severally use their best endeavors to assist, help, advise and aid said Harris in the collection and realization of the claims mentioned and described in the last mentioned power of attorney. Bills of sale were exchanged between Bailey & Walford, by which Bailey transferred the business of the said firm conducted in the City of New York to Walford, and Walford transferred to Bailey the business transacted at Newport News, Virginia. In the course of the liquidation of the affairs of firm-No. 1 the defendant Harris, in August, 1891, collected from insurance companies the sum of $6,000 on account of the loss of a vessel named in the second power of attorney, which was an asset of firm No. 1. Out of this sum Harris paid a certain amount to creditors of firms Nos. 1 and 2 and retained the balance, claiming the right so to do because of an indebtedness of firm No. 1 to him.

No accounting having been had between the parties, this action was commenced, as far as it is against the defendant Harris, to procure an accounting from him of his proceedings as the attorney in fact of Bailey and Walford under the powers of attorney given by them. The defendant Harris, as has been heretofore stated, demanded in his answer a general accounting.

We are unable to see upon what theory the defendant Harris can be compelled to account, especially in regard to any of the assets of the firm of H. B. Bailey & Company No. 1. And we are at a loss to understand what additional authority was conferred upon the defendant Harris, in respect to the liquidation of the affairs of that firm by the powers of attorney, which he did not possess by virtue of his partnership relation. It appears to be admitted by the plaintiffs in this action that at the time of the dissolution of the firm of H. B. Bailey & Company No. 1 there was a large sum of money due to Harris for merchandise. It also appears that Harris has collected certain moneys belonging to this firm, and entirely independent of the question as to whether the other partners are indebted to him as the result of the joint adventure, he is decreed to pay over this money to a receiver. It un doubtedly was the theory under which this judgment was entered that some different relation was created by reason of the power of attorney which the plaintiff Walford and the defendant Bailey gave to Harris in respect to the affairs of firm No, 1. There is nothing in the case tending to show that by any valid agreement Harris had resigned any claim to liquidation. It is true there was an arrangement that the new firm were to liquidate the affairs of the old firm ; but that was a mere matter of agreement, apparently being without consideration, and, therefore, 'not obligatory. I was an amicable arrangement between these parties, and when that, firm went out to existence, then the whole question of the liquidation of both firms was transferred to Harris, the partner in the ' first. .

Whatever might be the rights of the plaintiff and the defendant Bailey in respect to the affairs of firm No. 2, it is manifest that in respect to the assets of firm No. 1, it appearing that the firm was largely indebted to Harris, he should not be compelled to pay over until his claim against the firm has been adjusted, except, perhaps, so far as might be necessary to liquidate the indebedtness of said firm. Therefore, before any judgment should be entered against the defendant Harris in regard to the moneys in his hands belonging to firm No. 1, he was entitled to a general accounting of the affairs of the firm. A partner cannot convert the assets of the firm by simply keeping them in possession. It is true that the other members of the firm have an equal right to possession, but they should not be allowed to compel him to pay-over, where it appears that the firm is largely indebted to him, except such amount as- on an accounting is determined to rightfully belong to them. Neither can individual -items be taken from the partnership affairs and made to form the subject of an independent proceeding, for the simple reason that in order to determine the rights of the partners, one against the other, it is necessary to examine the whole proceedings of the copartnership and thus determine as to whether this partner or that partner has overdrawn or is in debt. But in the case at bar it has been assumed, because of the existence of these powers of attorney, that some other or different rule should be applied; that some more strict relation existed between Harris and his copartners in reference to the liquidation of the business of firm" No. 1 than would have obtained had no such instruments been executed. As has been already observed, we fail to see how the rights of Harris, as a partner, were in any way sacrificed or released or abridged by reason of the existence of either of these powers of attorney. "He had the right to liquidate the affairs of the firm, and as such liquidator, if he was called to account for any one of his proceedings, he was entitled to have-a general settlement-. In the case at bar his rights are adjudicated upon independent of what the general result may be; and he is directed to pay over money, although it may'ultimately appear that every cent of it belongs to him, and that he has not exercised any power as against his copartners which he was not authorized to do.

It seems to us that the rights of the parties have been misconceived, and that the plaintiff was not authorized, because of the giving of these powers of attorney, to proceed against the defendant Harris—certainly as far as the affairs pf firm Ho. 1 are concerned, which is the only matter in respect to which an affirmative judgment is granted against Harris—except as a partner for an accounting and settlement of the whole affairs of the copartnership.

The judgment should be reversed and a new trial ordered before another referee, to be appointed upon the entry of the order herein, with costs to the appellant to abide the event

Follett and Parker, J. J., concur.


source: Caselaw Access Project

author:
Sedgwick, 0. J. Dugro, J.
      Gtldersleeve, J.

license: Public Domain

text:
    The People ex rel. Edwin L. Johnson, App’lt, v. The New York Produce Exchange, Resp’t.

      (New York Superior Court, General Term,

      Filed May, 1894.)

    New York Produce Exchange—Managers—Power of.
    The board of managers of the New York Produce Exchange has no authority to suspend a member on a complaint involving merely a breach of contract.
    Appeal by relator from order refusing a peremptory mandamus in his behalf.

      Southard, & Fairchild, for app’lt; Baldwin & Blachmar, for resp’t. '
   Sedgwick, 0. J.

The relator was a member of a corporation, the defendant He was in regular form charged with a violation of one of the by-laws and was found guilty and was suspended from membership. He applied below for a peremptory mandamus to the corporation to restore him to membership. The application was denied and this appeal is taken from the order then made. '

The complaint against the relator charged him with or accused him of proceedings inconsistent with .just and equitable principles of trade as follows: Hon-fulfillment of contract of Hovember 16th, 1892. It thus appears that the offense alleged is the non-fulfillment of a contract, which is, in and of itself, stated by the complaint to be a proceeding inconsistent with just and equitable principles of trade.

The position taken by the relator is that neither the charter nor the by-laws made the mere non-fulfillment of a contract an offense.

The by-law in question was that any member who shall be accused, etc., of fraudulent breach of contract, or of any proceeding inconsistent with just and equitable principles of trade shall, etc. It is to be observed here that the by-law intends that a member shall be condemned when his breach of his contract shall be fraudulent. There would be no purpose of specifying this, if the intention were to permit generaly unjust and inequitable breaches of contract. If there were such an intention a fraudulent breach of contract would.not be specified. For, according to the meaning of “unjust and inequitable," as given by the respondent’s counsel, they would include the case of fraud.

I am of opinion that a breach of contract in and of itself is not inconsistent with just and equitable principles of trade in a true sense. A breach of contract is a commission of some act, or its omission, specified or implied, in the contract. This commission or omission is not just or unjust, inequitable or equitable, for the law does not look for those qualities in adjudicating upon a contract, but simply at the contract and its terms. If, however, the words are to be taken in a moral sense, then the offense would be doing something in connection with the breach of contract, but which could not be a part of it, that was morally unjust and inequitable. In such a case the circumstances must be charged, and not merely the fact of breaking the contract.

It is asked whether it is possible to assume as matter of law that it is not and cannot be unjust and inequitable to break a cqntract. It is sufficient, I think, to say that the law has had no occasion, in passing upon a case of common law contract, to pass upon the question of whether a breach was unjust or inequitable. It would be unnecessary to do so. The subject would be irrelevant. It must be assumed, then,' that the law assumes a breach pure and simple of a contract of this kind is not unjust and is not inequitable. And if it is a matter turning upon a question of trade, morals, or general morals, the question will be determined by facts outside of the mere breach, and they will be a necessary part of the charge.

The by-law in question is founded upon or has received its validity from that part of the charter which concerns the same subject, and is as follows: “The purposes of said corporation shall be * * * to inculcate just and equitable principles of trade.” The complaint, in substance, then, was that the non-fulfillment of the contract was opposed to or at variance with the inculcation mentioned in the charter. According to Webster, „to inculcate means to impress by pregnant admonitions, to teach and enforce by frequent admonitions, to urge on the mind. On the face of the charter this inculcation, whether to be made by writing or in any other manner, was the duty of the corporation as such. It was not made the duty of the individual members. The corporation had done nothing towards the performance of this duty. The subject was very difficult to treat. The questions were involved of what is a principle of trade; do they involve matters of morals as well as of political economy; what is just and equitable; to what extent should the golden rule be enforced or should the maxim of business is business be enforced? Certainly the individual judgments of the members were not to be relied upon. Bach was not to determine thé questions alluded to. As long as the corporation had not acted, there was nothing to bind the members or to guide or enlighten them. I therefore think that, until the corporation had acted in the matter, anything done in trade by a member was not an opposition of the inculcation referred to in the charter. It might be believed that when the corporation proceeded, a particular act might be of a kind that was opposed to the corporate movement, but if the act was done before that, there was no violation of the charter. I think that as the case of People ex rel. Thacher v. New York Commercial Association, 18 Abb. P. R., 279, proceeded upon the proposition that it was the duty of the individual members humanly to inculcate just and equitable principles of trade, it should not be followed.

There was no pretense upon the face of the complaint that the corporation had taken corporate action in respect of the subject. Therefore no offense recognized by the charter was stated, and the committee had no jurisdiction of the offense alleged as such by the complaint.

I am also of opinion that by the charter the common law right of the other party to the contract in question was preserved, and that involves the preservation of the common law right of the relator freely to defend, by any defense that might be made in such a court of law. And it is not pretended that, at the time of the relator’s trial before the board of managers, he did not have that right. The charter does not in any way refer to this right of defense. That cannot be opposed to the just and equitable principle of trade. But to threaten him, in ad vaneé of the action, with expulsion, and oppressively suspending him for non-fulfillment of his contract, would tend to deter or be an effort to deter him from the exercise of a legal right. This cannot be one of the purposes of the corporation, and a by-law made under such a charter is not sanctioned by it, and is against public policy. I, therefore, think that the board of managers had no power to entertain the complaint.

I cannot perceive that Hurst v. N. Y Produce Exchange, 100 N. Y. 605, touches the question. The prevailing opinion was, in substance, that a complaint of conduct against the just and equitable principles of trade,gave the complaint committee power to entertain it, and a right to the board of managers to try it. It was not to be assumed that it would be adjudged that the member was guilty for doing something that was not charged in the complaint or condemned in the by-law. It was not' decided that the non-fulfillment of a contract was intended by the by-law. Thát question was left for decision when it should arise, after proof was taken by the board. And it was considered that the complaint by itself gave jurisdiction. The complaint on its face did not show that the offense charged was the non-fulfillment of a contract.

The order below should be reversed, with $10 costs, and the motion granted, with $10 costs.

Dugro, J.

(concurring).—I think it is fair to conclude that a belief by defendant’s board of managers that a breach of contract is a proceeding inconsistent with just and equitable principles of trade, within the meaning of that term as used in the by-laws of defendant, led to the plaintiff’s expulsion.

The belief did not accord with the fact. A breach of contract is not the “proceeding” referred to in the by-law. The opinion of Judge Danforth in Hurst v. Produce Exchange, 1 Cent. Rep., 265, is convincing upon this point.

I concur with the chief justice in his disposition of the appeal

Gtldersleeve, J.

(dissenting).—This is an appeal from a final order of the special term, denying a motion for a peremptory mandamus. The relator was a member of the New York Produce Exchange, the respondent herein, from which he has been suspended. The respondent is a corporation, created by special act of the legislature, Laws of 1862, chapter 359. ; It was not organized for the sake of profit; but its leading purposes were “to •provide and regulate a suitable room or rooms for a produce exchange in the city of New York, to inculcate just and equitable principles of trade, to establish and maintain uniformity in commercial usages, to acquire, preserve and disseminate valuable business information, and to adjust controversies and misunderstandings between persons engaged in business.” It.has power to enact by-laws and to elect new members, and to expel or suspend members in such manner as may be provided by the by-laws. The by-laws provide that if any member be accused of a willful violation of the charter, a fraudulent breach of contract, or any proceedings inconsistent with just arid equitable principles of trade, or other misconduct, he may, by a complaint in writing, be summoned before the complaint committee, when, if he desire, he shall be heard in his defense. If that committee is unable to conciliate the disputants, or induce them to arbitrate, and the circumstances seem to warrant, the eornplaint shall be referred to the board of managers, when both plaintiff and defendant shall have an opportunity to be heard again in person prior to final action in the case; and if, in the opinion of the board, the charge or charges against said defendant be substantiated, it (the board of managers) may, by a vote of not less than two-thirds of all members present, either censure, suspend or expel him from the Exchange. At the time the relator was admitted to membership in the Exchange, he signed an agreement to abide by the charter and by-laws and any amendment which might 'thereto be made; and at such time of admission the charter and by-laws provided as above set forth, and so provided at all the times under consideration. On or about December 22d, 1892, the firm of Whitman Brothers, members of the Exchange, made a complaint against the relator, accusing him of “ proceedings inconsistent with just and equitable principles of trade, as follows: Non-fulfillment of contract,” etc. The relator appeared and presented his defense on the merits, and the complaint committee, being unable to conciliate the disputants or induce them to arbitrate, referred the matter to the board of managers. The relator then appeared before the board of managers and presented his defense on the merits. After hearing the testimony the board of managers, by a vote of more than two-thirds of all the members present, suspended said relator, holding that the charge of proceedings inconsistent with just and equitable principles of trade in respect-to the non-fulfillment of the contract in question was substantiated. The proceedings on the part of the Exchange appear to have been perfectly regular, and in accordance with the provisions of its charter and by-laws.

The relator, upon being so suspended from the Exchange, made a motion for a peremptory mandamus to compel the respondent to reinstate him as a member of the Exchange, which motion was denied by the special term, and from the order entered thereon this appeal is taken to the general term.

It is claimed, on the part of the relator, that the complaint filed by Whitman Brothers did not confer j urisdiction on the Exchange. By its charter and by-laws, to which relator subscribed, and by which he agreed to be bound, jurisdiction was conferred upon the Exchange to suspend a member for “ proceedings inconsistent with just and equitable principles of trade.”

The complaint is as follows:

“ To the Chairman of the Complaint Committee of the New York Produce Exchange:
“ Sir: The undersigned and above named complainants hereby
complain of the above named defendant, member of the New York Produce Exchange, and accuse him of proceedings inconsistent with just and equitable principles of trade as follows: Hon-fulfillment of contract of Hovember 16th, 1892 ; also claim costs of this complaint. “Whitman Brothers,
“Complainants.”

The relator claims that under some circumstances it is not “ inconsistent with just and equitable principles of trade” to break a contract, and that the complaint should have been more specific; that it should have specified or indicated that the contract was claimed to have been broken through the fault or fraud of relator. We are of opinion, however, that the complaint was sufficient, as it gave relator knowledge of the alleged offense which he was to meet. See Angel and Ames on Corporations, § 422. The complaint stated that the relator had broken a specified contract. This fact, once established, called for an explanation from the relator. It was the province of the Board to determine, from all the facts and circumstances, whether the conduct of the relator, in respect of the contract, was inconsistent with just and equitable principles of trade.

The nature and purpose for which a corporation was created is the controlling consideration in determining the validity of its bylaws ; and if they are foreign to its character and .a departure from its purposes, they are void; if otherwise, and they are in harmony with the general laws, they are valid. That a corporation, purely commercial in its character, would soon cease to be respected, or respectable, if it tolerated among its members a violation of an undisputed contract, is a proposition too plain for argument. People ex rel. Page v. Board of Trade, 45 Ill. 112.

In the case at bar, the charge against relator makes out a case of proceedings inconsistent with just and equitable principles of trade, and the relator must abide by an adjudication from the committee or board by whom, as one of the terms of membership, he agreed such matters should be investigated. Hurst v. N. Y. Produce Exchange, 1 Central Rep. 260, opinion of Danforth, J.

In the case last above cited, which controlled the court below, and which discloses a state of facts similar to those in the case at. bar and presents a similar question of jurisdiction, the court of appeals was sharply divided, three members holding that the Board, had jurisdiction, and three holding that it had no jurisdiction, and oue declining to pass upon the question of jurisdiction. SeeHurst v. N. Y Produce Exchange, 100 N. Y. 605. We are inclined to hold that the board had jurisdiction. Corporations have an inherent power of disfranchisement for any one of three causes, viz.: (1) for offenses having no immediate relation to a member’s, corporation duty, but of so infamous a nature as to render him unfit for the society of honest men; (2) for an offense against the-member’s duty as a corporatorand (3) for offenses compounded of the two. People ex rel. Page v. Board of Trade, supra. In this case at bar, relator is charged with an offense against his duty as a. corporator, e. g., acting inconsistently'with just and equitable principles of trade. He was duly given a hearing in his defense, and, after such hearing, suspended by proceedings in perfect conformity with the requirements of the charter and by-laws, which he had agreed to be bound by. It is true that there was an action pending in a court of law involving this contract between relator and Whitman Brothers; but the only question which the board attempted or cared to determine was this: Was the conduct of relator inconsistent with just and equitable principles of trade?' Where a member of a corporation performs an act in direct contravention of the purposes for which the charter was obtained, he-may be suspended or expelled. People ex rel. Thacher v. N. Y. Commercial Association, 18 Abb. Pr. R., 271. The charter of the-defendant stated that the corporation was formed,- among other-tilings, to inculcate just and equitable principles of trade; and; we are of opinion that just and equitable principles of trade require the members to perform their contracts, unless good and sufficient reasons are shown why such contracts should not or could; not be performed.

The Exchange, having jurisdiction, acted through its board of' managers judicially in determining the question of relator’s guilt, and punishment, and such decision, being regularly made, cannot, be collaterally reviewed. When relator joined the Exchange, the-by-law, above referred to, with regard to proceedings inconsistent, with just and equitable principles of trade, was in force, and he ■signed an agreement, as we have before stated, to abide by the-charter, and "by-laws; but,, independently of this agreement, the-mere fact of membership subjected him to their operation, for-when a person becomes a member of a corporation, he thereby voluntarily submits himself to the operation of all laws in force-for its government, and by implication agrees to be bound by them, so far as they are within the corporate authority to enact. People ex rel. Page v. Board of Trade, 45 Ill. 112. The by-law provides that if, in the opinion of the board of managers, the charge be substantiated, the accused member may be censured, suspended or expelled. The relator, by so joining the Exchange and subscribing to its charter and by-laws, chose his own tribunal, appeared before it, argued his case upon the merits, and the-tribunal decided that his conduct had been unjust and inequitable,, and suspended him.

Where one voluntarily becomes a member of an incorporated society or association, whose by-laws provide a certain method of disfranchisement for certain specified causes, the assent of the-member thereto being a fundamental condition of his tenure of membership, the right of disfranchisement is clearly established, in the corporate body, and may be duly exercised in the manner and for the causes prescribed. And where, under such an organization, a corporator has been regularly tried and suspended or expelled in due form, the sentence of the body corporate, thus acting in a judicial capacity, is not to be questioned collaterally, nor will the merits of such suspension or expulsion be examined in proceedings for a mandamus. See High on Mandamus, § 292.. Where a subordinate body is vested with power to determine a question of fact, the duty is judicial, and though it can be compelled by mandamus to determine the fact, it cannot be directed to decide in a particular way, however clearly it be made to appear what the decision ought to be. People ex rel. Francis v. Com. Council, 78 N. Y. 33. “Where the charter of an association provides for an offense, directs the mode of proceeding, and authorizes the society, on conviction of a member, to expel him, an expulsion, if the proceedings have been regular, is conclusive? and cannot be inquired into collaterally by mandamus or by any other mode.” Angelí and Ames on Cor., § 418.

The fact that relator refused to arbitrate has nothing to do with, the case. The proceeding before the board was not an arbitration, or, strictly speaking, a trial of the issues between relator and Whitman Brothers; it was simply an investigation into the conduct of the relator in the matter to determine whether or not he had been guilty of conduct inconsistent with just and equitable principles of trade. For the same reason the pendency of an action at law between relator and Whitman Brothers has no bearing upon the case.

For the reasons above stated the order appealed from must be' affirmed, with ten dollars costs and disbursements.


author: McAdam, J.

text:
    Anthony Solarz, Pl’ff, v. The Manhattan Railway Company, Def’t.

      (New York Superior Court, Trial Term,

      Filed May, 1894.)

    1. Master and servant—Safe place to work.
    Master must furnish a safe place for his servant to work, and cannot relieve himself from this duty by delegation.
    2. Same—Presumption.
    The fact that a scaffold gave way, is prima facie evidence of negligence.
    3. Negligence—Sunday.
    A party, in order to escape from liability for his negligence, cannot plead a violation of the Sunday law which he invited.

      4. Damages—Excessive.
    In estimating damages for personal injuries arising from negligence, -much must be left to the sound judgment of the jury, and their discretion should not be disturbed except in a clear case of abuse. 1
    Motion by defendant for new trial on the minutes.
    Davies, Short & Townsend (F. tí. Thomas, of counsel), for motion ; John L. Brower {J. J. Delany, of counsel), opposed.
   McAdam, J.

The plaintiff, a laborer in the employ of the defendant, was required by it to report to one of its foremen for work on Sunday morning, May 1st, 1892, at the defendant’s blacksmith shop on Third avenue and Ninety-eighth street, this city. The plaintiff reported as requested, and, following the foreman’s direction, ascended a scaffolding which the defendant had erected, some twenty feet or more in height; while working there one of the central boards broke, the end turned, and the plaintiff was precipitated to the ground, sustaining injuries of such a serious character to the bones of both feet as to necessitate his removal to a hospital, where he was required to remain until June 26; 1892, when lie was able to leave the institution on crutches. The plaintiff has not recovered from the injuries, and probably never will be able to work again.

The jury rendered a verdict in favor of the plaintiff for $15,-000, and the defendant moves for a new trial upon the ground (1) that there was no evidence of negligence; (2) that the plaintiff was engaged in violating the Sunday law at the time of the accident, and, being a wrongdoer, cannot recover; (3) that the dam-, ages awarded are excessive. These objections will be considered in the order of their presentation.

First. It is elementary that the master must furnish a safe place for his servant to work, and cannot relieve himself from this duty by delegation. See cases collated in Rettig v. Fifth Ave. Trans. Co., 6 Misc. R. 332; 56 St. Rep. 235. In Green v. Banta, 48 N. Y. Super. Ct. R. 156; aff’d, 97 N. Y. 627, the plaintiff and other servants of the defendant were dumping bricks upon a scaffold when it fell, and plaintiff was injured thereby. In an action to recover for said injuries, held, “that it was the duty of defendant to furnish for plaintiff to work on- properly built scaffolding, and any negligence of the foreman or other workmen employed by defendant to erect the same was defendant’s negligence, and not that of a fellow workman of plaintiff.” Also held, “that the fact that the scaffold gave way was prima facie evidence of negligence.” See, also, Flynn v. Harlow, 46 St. Rep. at page 876.

Upon these authorities the unexplained breaking down of the ■scaffolding made out a case sufficiently strong to go to the jury on the subject of negligence, and that question was sent to them with instructions which fully explained the rights and duties of the respective parties in regard to the scaffolding and the care required in its use.

Second. The Penal Code (§§ 263, 266), prohibits manual labor and manufactures on the Sabbath, yet it is clear that the.violation of these penal provisions had nothing whatever to do with the injury to the plaintiff, for it would have happened to him on any other day under similar conditions. It was not the day but the neglect of the defendant which caused the damage.

A party violating the law is not on that account put at the mercy of others. Cooley on Torts, 159. He may not be able to recover for services rendered on the faith of the contract; but he is not for that reason to be physically disabled. In other words, the defendant, in order to escape from liability for its negligence, cannot plead a violation of the Sunday law which it invited. Carroll v. Staten Island R. R. Co., 65 Barb., 32; aff’d 58 N. Y., 126 ; s. c., 17 Am. R., 231; Nodine v. Doherty, 46 Barb., 59; Platz v. City of Cohoes, 89 N. Y., 219 ; O'Shea v. Kohn, 33 Hun, 114; aff’d 97 N. Y., 649; Merritt v. Earle, 29 N. Y., 115; Bertholf v. O’Reilly, 8 Hun, 16 ; aff’d 74 N. Y., 509 ; Sutton v. Wauwatosa, 29 Wisc. R., 21; Knowlton v. R. R. Co., 59 Id., 278; Mahney v. Cook, 26 Penn. St., 342; W. U. T. Co. v. McLaurin, 70 Miss. R., 26; s. c., 38 Am. & Eng. R. R. cases, note; R. R. Co. v. Towboat Co., 23 How. U. S., 218; Powhatan Co. v. R. R. Co., 24 Id., 247; R. R. Co. v. Buck, 116 Ind. R., 566; R. R. Co. v. Travers, 110 Id., 18; R. R. Co. v. Rider, Tex. R., 267; Schmid v. Humphreys, 48 Iowa R., 652; Baldwin v. Barney, 12 R. I. R., 392 ; Blatch v. Lewison, 13 Pac. R., 80 ; Sharp v. Evergreen, 35 North W. R., 67; Smith v. R. R. Co., 46 N. J. L. R., 7; Johnson v. R. R. Co., 18 Neb. R., 690; Van Augen v. R. R. Co., 55 N. W. R., 971.

The rule declared seems to be in accord with the consensus of opinion on the subject, and the decisions of the Massachusetts courts to the contrary depend so much on the peculiar legislation and customs of that commonwealth as to be regarded inapplicable to injuries received in this state.

The authorities cited are adjudications in cases which rested more or less upon contractual relations made in violation of the statutory provisions respecting the Sabbath, and recoveries were, nevertheless, sustained on the ground that the transgression by the plaintiff was not the proximate cause of the damage, did not justify the injuries complained of, and furnished no defense to the defendants who caused them.

If the plaintiff had to recover “ through the medium and by the aid of an illegal transaction, to which he was himself a party,” there might be some force in the defendant’s contention. But this is not so, for the defendant is liable to plaintiff for the safety of the scaffolding, independent of the contractural relations between them. Coughtry v. Globe W. Co., 56 N. Y., 124.

Third. There is no precise rule for estimating damages for personal injuries arising from negligence. The compensation is for pain and suffering, which cannot be accurately estimated in dollars and cents. The damages may embrace the expenses of cure, the value of time lost thereby, with a fair allowance for any permanent disability and diminution of power to earn money. Evidently, much must be left to the sound judgment of the jury, and their discretion should not be disturbed except in a clear case of abuse. The plaintiff was thirty-five years of age at the time he sustained the injuries, which are likely to be of a permanent character, wholly disabling him. from all labor. He had a long and useful life before him. The verdict was for $15,000. Smaller verdicts have in like cases been set aside; while those nearly approximating or exceeding it in amount have, in the following cases, been sustained : $12,000, Rockwell v. Third Ave. R. R. Co., 64 Barb., 438; aff’d 53 N. Y., 625; $14,000, Gale v. N. Y. C. R. R. Co., 13 Hun, 1; aff’d 76 N. Y., 594; $15,000, Schultz v. Third Ave. R. R. Co., 46 N. Y. Supr. Ct. R., 211; reversed on other grounds, 89 N. Y., 242; $15,000, Mitchell v. Broadway & S. A. R. R. Co., 70 Hun, 387 ; 54 St. Rep., 116; 24 N. Y. Supp., 32; $20,000, Walker v. Erie R. R. Co., 63 Barb., 260; $30,000, Harrold v. N. Y. El. R. R. Co., 24 Hun, 184.

In view of these cases it is impossible to hold with any degree of confidence what the verdict should have been, or that it is ill proportioned to the serious character of the injuries.

For these reasons the motion for a new trial must be denied.


author: Pryor, J.

text:
    Louis T. Helwig, App’lt, v. Second Avenue Railroad Company, Resp’t.

      (New York Common Pleas, General Term,

      Filed May, 1894.)

    1. New trial—Surprise—Newly discovered evidence.
    In the determination of a motion to set aside a verdict on the ground of surprise and newly discovered evidence, the interest of justice will prevail over the technical rules of practice.
    2. Same—Surprise.
    Sudden insanity of a witness was held to be a " surprise ” in the legal sense.
    3. Same—Newly discovered evidence.
    The fact of insanity, developed since his testimony, was held to be-“newly discovered evidence.”'
    Appeal from order at special term, granting a new trial on the-ground of surprise and newly discovered evidence. The opinion states the case. ®

      G. Washbourne Smith, for app’lt; Payson Merrill, for resp’t.
   Pryor, J.

In an action for personal injury by the negligence of the defendant, the plaintiff had a verdict for five thousand dollars. Upon a, case and affidavits, the defendant moved at special term for a new trial on the ground of surprise and newly discovered evidence. From an order granting the motion-the appeal is taken.

The contention at the trial was upon the question of defendant’s negligence, the plaintiff maintaining that he was thrown from the car by its starting while he was in the act of alighting, and the defendant insisting that he fell by attempting to alight while the car was in motion. To this isáue the evidence of the parties was directed, and upon this issue the event of the verdict was suspended» Each litigant adduced testimony in support of his position, but the decisive proof came from the man on the platform in whose immediate presence the casualty occurred. Each party produced a person as that man—the plaintiff one Miller and the defendant ■one Mintz. The testimony of Mintz, if true, was conclusive of the plaintiff’s case. The'testiinony of Miller, if true, established the defense. Miller swore that he was the man ; Mintz that he was the man. The plaintiff corroborated Miller; the driver identified Mintz as the man on the platform. The testimony of the conductor would probably be decisive of the dispute. But although in conference with counsel for the plaintiff he had frequently and firmly-recognized Mintz as the man on the platform, at the trial, ■on his direct examination, he testified faintly to the fact, and on the cross-examination he admitted, in effect, that he did not remember the man’s face. The inevitable impression, from the mis■carriage of the conductor as a witness, was that he had broken down in an attempt to play a suborned part, and that the defense was a fabrication and a fraud. No other result of the trial was then possible than a verdict for the plaintiff, and for damages aggravated in amount by just indignation at a wicked effort of the defendant to defeat justice by the perjury of its employe.

While on the stand the conductor said he was sick, though seemingly well, and betrayed a nervous agitation upon which plaintiff’s counsel animadverted, and of which he availed himself with skill and obvious effect. That nervous embarrassment the jury could not but impute to a guilty conscience, or else to an apprehension of detection and punishment.

The court took a recess; and then, for the first time, the witness discovered to defendant’s counsel signs of mental malady. He said, “ I have been mesmerized; somebody put something under the seat that mesmerized me.” Next morning he went to the company’s office, and said to the inspector: “ I want to resign; I have been mesmerized; I was mesmerized down at court on the Hélwig case ; somebody put something under my seat that mesmerized me; I want to resign; I don’t want to see a doctor; I am sound; I have been mesmerized; I know what I am talking about; I could not find my way out of the court-house; I was passing around there half an hour trying to get out; I gave a boy twenty-five cents to show me- the way out, and put me on the elevated train.” Early in the following week the witness became maniacal, and, before the end of the week, was taken by the police to Bellevue hospital, where he was officially declared insane.

From the facts and the expert evidence, no inference is admissible but that the witness was insane at the time of delivering his testimony.

After all, however, is legal cause apparent in the papers for setting aside the verdict on the ground of surprise and newly discovered evidence?

What is the newlydiscovered evidence ? The fact of the insanity of the witness. What is the surprise ? That, because of the sudden insanity, the witness failed to testify as strongly for the defendant as his previous statements had authorized the expectation; and that, because of sudden insanity, he so displayed himself to the jury as to impress them with a conviction of his perjury.

The case is of first impression. We concede that the specific surprise and newly discovered evidence are not such as have ever engaged the attention of courts and been adjudged grounds for vacating a verdict. To sustain this order we own that a precedent is to be made; but that precedent we shall set if indispensable to the interests of justice. The ultimate end of all law and the essential function of all .courts is the administration of justice; and it were a preposterous perversion of these institutions to sacrifice their great object to the technical regulations of formal procedure. If the present were a case identical in circumstance and substance with those out of which arose the rules applicable to new trials for surprise and newly discovered evidence, we should deem ourselves bound by the precedents. But, as the instance is unparalleled, we shall be controlled by the principle of the adjudications: namely, that where apparently the verdict is against justice and the party applying for redress without fault, the cause should be submitted to the arbitrament of another jury.

Miller, we have said, was the witness whose testimony determined the verdict for the plaintiff. His appearance in the case challenges the gravest suspicion. Before this action in a suit for personal injury, plaintiff’s attorney had recovered a verdict against this defendant for $15,000 in favor of one Schnieder.

Schnieder was unknown to plaintiff; but on plaintiff’s first visit to the attorney in the present case he was directed by the attorney to go to Schnieder. He went, and there he saw Miller. His recognition of Miller as the man on the platform, and Miller’s recognition of him as the man then hurt were reciprocal and instantaneous. Plaintiff exclaimed : “ There is the painter,"' and Miller exclaimed, “ There is the man that was pushed down from the car." Thus was procured the witness who won plaintiff’s case for him. Why did the attorney, collecting evidence for the plaintiff, direct him to the stranger, Schnieder, the attorney’s client in a former action? How happened it that Miller was opportunely at Schnieder’s on the occassion of plaintiff’s call ? Do the circumstances of this extraordinary interview consist with accident, or are they suggestive of contrivance?

In our judgment, the preponderance of probabilities is with the latter hypothesis; and yet, upon another trial fuller explanation may efface the ill appearance of the transaction.

Then, too, Miller’s career, by his own account, is not of the sort to conciliate special confidence. And in his testimony he mistimed the accident by just a year, swearing positively that it occurred in 1893, whereas it happened in 1892. Plaintiff’s testimony, likewise, is replete with.prevarication and contradiction.

What, then, were the circumstances that induced the jury to give credence to the story of plaintiff and Miller ? In the failure of Duffy, the conductor, to verify the strong assurance to the jury by plaintiff’s counsel that he would identify Mintz as the man on the platform, and in the nervous agitation of Duffy on the witness stand, we have an explanation of the verdict. What other conclusion was open to the jury than that the defense was a fabrication to be supported by perjury, from, which, however, under the strain of the crisis the witness shrank? With this conviction, no wonder that the jury found for the plaintiff, and in an amount, we repeat, indicative of indigation at the abortive iniquity.

But had Duffy been in full possession of his faculties, who can say that his testimony would not have been equivalent to his previous statements, and would not have satisfied the jury that Minfcz, not Miller, was the man who saw the accident? The inference is legitimate, if not inevitable, that the failure of Duffy to give the expected evidence was the effect of sudden insanity, a surprise in the legal sense. The fact of his insanity, developed since his testimony, is newly discovered evidence; and it is a fact which, excluding him from the stand on another trial, will prevent a miscarriage of justice by confounding an insane with a perjured witness.

The only laches imputed to the defendant, is that after the strange exhibition of Duffy during the recess of the court, counsel omitted to request the withdrawal of a juror, and instead proceeded with the trial. But surely a layman is blameless for mistaking the symptoms of incipient insanity; and, on the eve of • summing up, a lawyer is hardly to be held to the most provident circumspection. '

We are satisfied that the interests of justice will be promote” by sending the cause to another jury.

Order affirmed, with costs and disbursements,

Daly, 0. J., and Bischoff, J., concur.


author: Bischoff, J. Pryor, J.

text:
    John August Kujek, Resp’t, v. Manassah L. Goldman. App’lt.

      (New York Common Pleas, General Term,

      Filed June, 1894.)

    1. Fraud—Chastity of intended wife.
    An action to recover damages for fraud and deceit will lie in favor of a husband against a party, with whom his wife had sustained illicit relations and by whom she .became pregnant before marriage, where he conspired with her to induce the marriage; and plaintiff, in contracting it, relied upon their false representations as to her chastity.
    2. Same—Ratification.
    Plaintiff’s voluntary cohabitation with his wife after the discovery ox her ante-nuptial pregnancy does not waive the fraud or bar the remedy.
    3. Same—Joint tort-feasors.
    The legal incapacity of the wife to be joined as a co-defendant does noi exonerate the defendant.
    4. Same—Conspiracy.
    Though the conspiracy charged is not proved, the action is maintainable provided legal damage is shown.
    Appeal from a judgment of the general term of the city court of New York, which affirmed a judgment for the plaintiff rendered. on a verdict in his favor, and which further affirmed an order denying defendant’s motion, made on the minute for a' new trial. Action by the husband against his wife and another, with whom she sustained concubinal intimacy before the marriage, to recover damages for fraud and deceit, the defendants having conspired to induce the plaintiff, by means of false representations of the woman’s chastity, to marry her, and the plaintiff, relying upon the truth of the representations, and believing her to have been chaste, having married the woman., At the time of the marriage the woman was pregnant by her co-defendant, and this action was instituted subsequent to her accouchement. The marriage was not annulled, and judgment was recovered against the male concubinary and'conspirator only, the action having been abandoned as against the other defendant.

      Wheeler H. Peclcham, for app’lt; August P. Wagener, for resp’t.
   Bischoff, J.

Though the defendant appellant on the trial denied his concubinage with the plaintiff’s wife, the paternity of the child born subsequent to the marriage, and the making of any representation of the woman’s chastity to induce the plaintiff to marry her, the testimony of the plaintiff and of his wjfe was abundant to establish the facts denied and conspicuously-denounced the denials as untrue. Nor were the representations mere matter of opinion. The illicit relations which had subsisted between the defendant1 -appellant and the woman endowed the former with personal knowledge of her defilement. When, therefore, he represented her to be chaste, he was aware that the contrary-was the fact. Hence his representation was a misrepresentation of á fact. It was the province of the jury to determine the credibility of the witnesses called to support or refute the allegations of the complaint-, and the jury having accepted the facts as they were testified to by the plaintiff and his wife, we may marvel at the former’s credulty, but are concluded upon the facts by the judgment of affirmance of the court below, in the presence of evidence, however slight or however incredible it may seen to us, which tends to support the verdict in its essential particulars.

The action was not maintainable by the plaintiff against his wife because of her participation in the fraud perpetrated upon him. The common law unity of husband and wife operates to preclude either spouse from successfully maintaining an action for damages in tort against the other. Am. & Eng. Ency. of Law, vol. 9, p. 823. Dicey on Parties, chap. 16, rule 67, p. 297; Schultz v. Schultz, 89 N. Y. 644; rev’g, 27 Hun, 26; Abbott v. Abbott, 24 Am. R. 27; Stewart’s Husband & Wife, § 53. The legal incapacity of the wife to be joined as a co-defendant, however, did not exonerate the defendant-appellant. Joint tort feasors may be proceeded against severally as well as jointly. Cooley on Torts, 2nd ed., p. 153; Dicey on Parties, chap. 25, rule 98, p. 448, and neither can object because the other’s liability is not sought to be enforced. Dyett v. Hyman et al., 129 N. Y. 351; 41 St. Rep. 644.

At common law the husband was liable civilter for his wife’s torts, whether committed by her before or during marriage. Dicey on Parties, chap. 30, rule 107, p. 477; Lawson’s Eights, Remedies and Practice, vol. 2, p. 1329; Cooley on Torts, 2nd ed., p. 131 ; Schouler’s Husband and Wife, § 130, etc.; Tyler on Infancy and Coverture, p. 359, etc.; Holtz v. Dick, 51 Am. R. 791-823; Rowe v. Smith, 45 N. Y. 230; Baum v. Mullen, 47 N. Y. 477; but this liability has been radically changed and he is no longer liable for her torts unless committed by actual coercion or instigation of the husband, chap. 51, Laws of 1890.

The evidence was abundant to establish the collusive character of the representations made by the plaintiff’s wife and the defendant-appellant to induce the plaintiff to conclude marriage with the woman; but, assuming that this was not so, it yet remained that the defendant-appellant made the false and fraudulent representations, upon the faith of which the plaintiff assumed the marriage relation, with all the obligations of the husband which the marriage status implies. Hence, though the conspiracy charged was not proved, the action was maintainable and a recovery therein •sanctioned, provided legal damage was shown. Where the action is brought against two or more concerned in the wrong done, it is necessary, in order to recover against all of them, to prove a -combination or joint act of all. For this purpose, it may be important to establish the allegation of a conspiracy. But, if it turn •out on the trial that only one was concerned, the plaintiff may still recover, the same as if such one had been sued alone. The conspiracy or combination is nothing so far as sustaining the action goes, the foundation of it being the actual damage done to the party.” Hutchins v. Hutchins, 7 Hill, 104. “But, if there be no evidence of conspiracy, the plaintiff may recover against one alone, where there is sufficient evidence against him, though not enough •against the other. This being an action founded in tort, one defendant may be found guilty and the other have a verdict in his favor. The damage here is the gist of the action, not the conspiracy. The plaintiff showed damage, and if it resulted from the wrongful acts of the defendants, or either of them, the plaintiff was entitled to recover.” Jones v. Baker et al., 7 Cow. 455 ; see also, Sheple v. Page, 12 Verm. 519, and Lee v. Kendall, 56 Hun, 610; 32 St. Rep. 165.

A more serious question arises as to whether or not the plaintiff has established a legal right to recover at all, as against appellant. Hot every wrong perpetrated by one person upon another is actionable. To be actionable the wrong must be accompanied by an injury to the person, reputation, property or marital rights of the plaintiff. For the wounded moral sensibility of a person, unaccompanied by an injury to his personj reputation, property or marital rights, the law will not afford relief by way of damages. A mere moral outrage inflicted by one person upon an: other is injuria sine damno, and the legal abhorism ubi jus ibi remedium (Brown’s Maxims, 8th ed., p. 191), must be accepted with-the qualification that it applies only to a legal right as distinguished from a moral right. Cooley on Torts, 2d ed., p. 20; Sutherland on Damages, vol. 1, sec. 3. Accordingly, when the wrongful act complained of is not cognizable in law as one for which damages will be awarded, the action is not maintainable. Commercial Bank v. Ten Eyck, 48 N. Y. 305 ; People v. Stephens, 71 N. Y. 541; Knapp v. Roche, 94 N. Y. 329. But the husband is entitled to compensation for the loss of the services of his wife. Uransky v. The Dry Dock, E. B. & B. R. R. Co., 118 N. Y. 304; 28 St. Rep. 711; Blaechinska v. Howard Mission, &c., 130 N. Y. 487 ; 42 St. Rep. 387, and of such services the plaintiff was deprived by the accouchement of his wife owing to her premarital pregnancy by the defendant. The injury to the plaintiff’s property in his wife’s services was inflicted simultaneously with the marriage induced by the fraud of the defendant-appellant. Post-marital accouchement of the wife indicates in a degree the extent of the injury. How sordid a mercenary consideration of the facts may seem, and however repugnant it may be to relieve thé plaintiff by the 'award of damages for his wife’s premarital incontinence, the novelty of the case should not be permitted to serve as a shield to the perpetrator of the fraud while the facts may be brought within the operation of legal principles which will sustain the recovery; and were it necessary to support the cause of action on the technical ground of loss of services alone, we are not prepared to say the action would not lie; but such support is by no means necessary to the validity of the judgment, because within the law the damage done plaintiff by appellant is a personal injury, and as such may be redressed without resort to any technical fiction of the common law.

Our Code (§ 3342) classifies injuries as “injurious to property ” and “ personal injuries,” and while so classifying wisely does not attempt a definition thereof; it has adopted practically the classification of common law actions in rem and in personam. The Code says: “Personal injury includes libel, slander, criminal conversation, seduction and malicious prosecution; also assault, battery, false imprisonment, or other actionable injury to the person either of the plaintiff or of another.”

Practically, after enumerating certain wrongs denominated “personal injuries,” the Code, with a flexibility born of common law wisdom, gives a test to determine what belongs to the classification “or other actionable injury to the person either of the plaintiff or of another.” The test to be applied is : if an injury to the person either of the plaintiff or of another be actionable, it is a personal injury.

The marital relation gives to the husband as well as to the wife conjugal duties and rights. The rights and duties are among the most sacred that can be cherished among men, and it would be an anomaly in our law if the disturber of these sacred rights by fraud could not be made to compensate for their loss. The degree of Wfrong to such a relation as manifested in the case at bar can be-measured by no rule of pecuniary loss, nor is such loss necessary to be proved to, support the action. Hermance v. James, 32 How. 142; Rinehart v. Bills, 82 Mo., 534; Bennett v. Bennett, 116 N. Y. 584; 27 St. Rep. 679.

The true basis of the action is the loss of consortium, or the right of a husband to the conjugal society of his wife, and' if the husband can maintain an action for enticing away his wife he certainly ought to be permitted to recover under the conditions existing in the case at bar. He certainly is just as much deprived of the comfort, aid and society of his wife in the latter as in the former case, and indeed the degree of injury may be much greater.

The novelty of the action may be accounted for from the fact that the enabling acts relating to the rights of the husband and wife and married women have, while enlarging the rights. and privileges of the married woman, at the same time relieved the husband from responsibilities and duties which by common law were borne by him. These enabling acts have, also given to the husband rights which may entitle him to bring actions where he otherwise would not have had the. right to bring them.

At common law, while the ordinary actions were provided for by appropriate forms, there was also the right to have a special action on the case when circumstances transpired which could not be brought within the forms of actions then existing. This was done that there might be no wrong without proper remedy, either by law as settled, or within the province of the court to settle, to meet appropriately the facts of the proposed action.

It is, therefore, not strange in this age, wherein the complexities of business and social life continually present new problems to solve, that facts should arise requiring substantially an application of the principle underlying the theory of the action on the case at common law to new facts and circumstances as they may present themselves to the courts. The right to so consider the matter we believe to have been expressly provided for by the Code in its classification of personal injuries as indicated herein, and while, if necessary to do so, we might uphold the judgment in this action upon the technical fiction of loss of services, we prefer to place it, where we have no doubt it properly belongs, as a personal injury, and as directly affecting the true basis of such an" action; that is, the loss to the husband of his full enjoyment of the com jugal society of his wife because of the tort and fraud-of the defendant. 6

The defendant-appellant cannot be permitted to avail himself of th® plaintiff’s ratification of the marriage upon discovery of the fraud. The right to repudiate the marriage was personal to the plaintiff. His ratification of it may have rendered the marriage indissolvable, b'ut in analogy with the general rule, the plaintiff "was permitted to affirm the marriage contract, and to insist' on reparation for the injury inflicted by the fraud. It does not rest with the perpetrator of the fraud to insist that his victim should have availed himself of particular means for extrication from his predicament.

Ho error is presented by any exception in the record. The judgments of the general and trial terms of the court below should be affirmed, with costs. - •

Daly, G. J., concurs.

Pryor, J.

(dissenting)—The late moment at which the prevail» ing opinion is submitted to me precludes the possibility of an elaborate argument in support of my dissent. I must be content with a simple statement of the propositions of law deemed antagonistic to the decision oí the majority.

The action is for deceit; and the false representation alleged is of the chastity of the woman, whereby the plaintiff was induced to marry her.

Is actionable fraud predicable of such a falsehood ? An affirmative answer to the inquiry is authorized by no dictum in the books or adjudication in the reports.

If it be said, ubi jus ibi remedium, still “an injury cognizable by law must be shown to have been inflicted on the plaintiff” (Broom’s Maxims, 193). In the constitution of actionable fraud damage is an indispensable element; but where is the damage to the plaintiff? In the legal sense damage is pecuniary detriment. The law knows no measure or recompense for fraud otherwise than by money. Of such damage what has the plaintiff suffered? It is answered, in deprivation of the consortium and conjugal service. Waiving the fact that no loss of consortium ensued from the fraud—the plaintiff continued to cohabit with the woman after the discovery of the fraud—the loss of service, if any, was not the effect of a violation of plaintiff’s marital right. At the time of the false representation the woman was not his wife. Supposing that, upon disclosure of the deceit, he had repudiated her, that would not have been in consequence of any wrong done him as husband, for at the time of the wrong he was not a husband. On the other hand, though he kept the woman after discovery of the fraud, and by reason of her pregnancy was subjected to loss, that loss was still not the consequence of any violation of his marital right, for when the fraud was practiced he had no marital right.

Every action ever prosecuted by a husband for loss oí-consortium or service—crim. .con., alienating affection, enticing away, personal injury—was a wrong done during the subsistence of the conjugal relation, and in violation of the conjugal right. Here, we repeat, the deceit was before the marriage, and was without effect upon marital right.

The fraud in question wants the essential elements of an actionable tort. But, for the wrong of which the plaintiff complains, the law has provided an appropriate remedy. Enticed by fraud into marriage with a woman unworthy of his embraces, his redress was to repudiate her; and the court would have absolved him from the matrimonial bond. He would have been restored then to his status quo, and his honor left without blemish. Instead, however, of recourse to the redress open to him, he elects to submit to the fraud, and to abide by the consequences. He confesses that he continued, for six months, to col mbit with the woman after the birth of the bastard and the discovery of the fraud. And yet lie asks the court to compensate him for a wrong which he deliberately ratifies and condones.

Ante-nuptial pregnancy by another than the husband is no ground of divorce after cohabitation with knowledge of the fact. Cohabitation, after knowledge, would, of course, be an assent to the fraud.” Bigelow to Fraud, p. 553, note 6. If an assent to the fraud in favor of the wife, why not for the benefit of her accomplice ? Assent to the act is forgiveness of the actor. Assent eliminates from the act its tortious quality, and no one thereafter is responsible for it in an action for damages.

If, indeed, the plaintiff were the man of outraged sensibility he would fain represent himself, I should be disposed to strain legal principle to the utmost in reparation of his wrong. But, when I consider that he still took the woman to his bosom after revelation of the shocking perfidy she had perpetrated upon him; that he then employed her in a conspiracy to extort money from the defendent; and that now it is through her instrumentality as a witness that he recovers a judgment for two thousand dollars, J. cannot but regard the action as an experiment in blackmailing by legal process. My associates view the case differently; but, such being my conviction of its character, I decline to overthrow fundamental and immemorial principles in carrying it to a triumphant consummation.


author: Gtegerich, J.

text:
    Andrew S. Wright, Resp’t, v. Benjamin F. Deniston et al., App’lts et al., Def’ts.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    1. Contract—Fraud—Rescission.
    A vendee may, after knowledge of the fraud, rescind the contract and recover that with which lie has parted, or continue to perform and maintain an action for damages.
    8. Same—Notice.
    A defrauded party owes no duty of vigilance to him who is guilty of the fraud.
    3. Same—Waiver.
    To constitute a waiver, an act must be performed with full knowledge of the circumstances with respect to which the waiver is to be operative.
    4. Same—Re-transfer.
    The court may decree the transfer of a, certificate of deposit which represents the money paid by the vendee upon1 entering into the transaction.
    5. Same.
    It is not indispensable that the certificate was issued for the identical money paid by the vendee. •
    Appeal from a judgment rendered by the court without a jury. The nature of the action and the material facts are sufficiently stated in the opinion.

      Oratz Nathan and John 0. Shaw, for app’lts; Charles B. Meyer, for resp’t.
   Gtegerich, J.

Plaintiff sought rescission of a sale of realty upon the ground of fraud. Upon appeal from a judgment whereby such rescission was decreed, it is contended that respondent had an adequate remedy at law, this being the principal ground relied upon by appellant. The facts were, essentially, that plaintiff and defendant Deniston entered into a contract whereby the latter was to convey to the former a certain parcel of land, plaintiff assuming a mortgage thereon. Defendant represented that there were no incum-o brances against the property other than this_mortgage, and so cove-° nanted in the deed of conveyance subsequently entered into. Plaintiff was informed by defendant, after the deed had been executed and consideration had passed, that a judgment was outstanding against him in favor of one O’Brien, and delay in making public the conveyance was requested in view of some intended settlement of this judgment. This disclosure brought about a conference between the attorneys for the parties, resulting in the deposit by defendant of the sum received as purchase money in the name of defendants Shaw and Outhbert as trustees for plaintiff, the fund to be paid to Decision, upon his satisfying the judgment referred to. Shortly after this, the existence of another judgment against Denis ton, also a lien upon this property, was made known to plaintiff, who, thereupon, brought his action in equity seeking rescission of the entire transaction and praying that the endorsement over to him, by defendants Shaw and Outhbert of the certificate of deposit representing the purchase money paid, be decreed.

Appellant contends that an action at law for damages, as upon a breach of the covenant against incumbrances, was the- plan tiff’s adequate remedy; but the argument is without foundation. A party induced by fraud to enter into a contract, has an election of remedies. “ He may, after knowledge of the fraud, rescind the contract and recover back that which he has parted with, or he may continue to perform on his part and maintain an action for such damages as he has sustained by reason of the fraud.” Pryor v. Foster, 130 N. Y. 175; 41 St. Rep. 320. To proceed for a rescission of the contract was here the plaintiff’s election, and to relief upon that election he is entitled. We are not to say that an affirmance of the fraudulent transaction was a duty imposed upon this plaintiff, and here, at least, the remedy suggested would not be adequate in view of the fact that the plaintiff had assumed payment of a mortgage, relying upon the representations made.

Again it is urged that the doctrine “ caveat eniptor ” should preclude a recovery in this action, but a defrauded party owes no duty of vigilance to him who is guilty of the fraud, Baker v. Lever, 67 N. Y. 304, “ and he is under no obligation to investigate and verify statements, to the truth of which the other party to the contract, with full means of knowledge, has deliberately pledged his faith.” Mead v. Bunn, 32 N. Y. 280. Moreover for the purposes of this transaction, the' plaintiff was not to be charged constructively with notice of the judgments, because of record. Page v. Waring, 76 N. Y. 474. That no waiver of plaintiff’s right to rescind was predicable of his accepting indemnity for the O’Brien judgment, when ignorant of the existence of the other, is seemingly too obvious to call for argument. . An act to constitute a waiver, must be performed with full knowledge of circumstances with respect to which the waiver is to .be operative. Newbery v. Furnival, 56 N. Y. 638; Robertson v. Met. Life Ins. Co., 88 Id. 545.

It was peculiarly within the equitable powers of the court to decree the transfer of the certificate of deposit in question, there being no ground for dispute that it represented the money paid by plaintiff upon entering into the transaction which by the decree was avoided and set aside; in fact it was held by the defendants as trustees entirely upon this assumption. That this certificate was issued upon the identical money paid by plaintiff, was not an indispensable fact. Van Alen v. American Nat. Bank, 52 N. Y. 1. As to the fact of the defendant Deniston’s fraud, we are constrained to give support to that finding among others essential to the judgment, there being no certificate with the case that all the evidence taken upon the trial is embodied in that record, Claflin v. Flack, 36 St. Rep. 728; McPhillips v. N. Y., N. H. & H. R. R. Co., 37 Id. 263; Cheney v. N. Y. C. & H. R. R. R. Co., 16 Hun, 415.; but upon the evidence before us we are well, content to uphold the,finding in question. We find no ground for disturbing the judgment in any particular and therefore it should be affirmed with costs.

Daly, C. J., and Bischoff, J., concur.


author: Gtegebich, J.

text:
    Andrew S. Wright, Resp’t, v. Benjamin F. Deniston et al., App’lts, et al., Def’ts.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    Appeal—Dismissal.
    Where the affirmance of a judgment concludes discussion as to the substantial right claimed to have been affected by an order directing compliance therewith, an examination into the merits of such order will, in no event, be of beneficial effect to appellant on appeal therefrom.
    Appeal from an order made at special term, directing compliance with certain terms of a judgment rendered at equity term, as an alternative to the defendants’ Shaw and Cuthbert being adjudged in contempt.

      Qratz Nathan, and John C. Shaw, for app’lts; Charles B. Meyer, for resp’ts.
   Gtegebich, J.

Appellant Deniston claimed that the order appealed from affected a substantial right, in that it required a transfer to plaintiff of the certificate deposited with the clerk, this transfer being an essential part of the relief granted to plaintiff, as against appellant, by the judgment appealed from.

The rights of Shaw and Cuthbert, the parties affected personally by the order, are not before us for determination; the appeal as to the former having been dismissed upon the argument and the latter having failed to appeal. The defendant Deniston was not a party of the proceeding in which this order was made, but points of distinction between the present case and that of Ross v. Wigg, 100 N. Y. 246, may be found in view of the nature of this appellant’s interest. Be that as it may, our affirmance of the judgment in this action concludes discussion as to the substantial right • claimed to have been affected, and examination into the merits of the order would in no event be of beneficial effect to appellant Appeal dismissed without costs.

Daly, 0. J., and Pryor, J., concur.


author: Smith, J. —

text:
    Charles R. McCauley, Plaintiff, v. William A. Hatfield et al., Defendants.

      (Supreme Court, Kings Special Term,

      Filed March 31, 1894.)

    Mechanic’s lien—Consent.
    In the absence of a covenant to repair on the part of a landlord, the mere knowledge and acquiescence by him in the repairs of the tenant do not constitute a consent, within the meaning of the mechanic’s lien law.
    Actioh for work done and materials furnished.

      William 0. Beecher, for pl’ff; Stephen B. Jacobs, for def’t Hatfield.
   Smith, J. —

This plaintiff furnished certain material and performed certain labor upon premises owned by the defendant Hatfield, under a contract with the defendant McCaffrey, who was lessee of the premises. The lease contained no covenant by the lessor to repair. It has been found as a fact that the lessor knew that the improvements were being made, and acquiesced therein. The question remaining for the decision is whether such knowledge and acquiescence on the part of the owner constitutes the consent required by the statute in order to charge the property of the owner. In Ross v. Simon, 28 St. Rep. 147; 8 N. Y. Supp. 2, the general term of the New York city court held that knowledge and acquiescence were not sufficient. McGowh, J., in writing the opinion of the court, says: “ Simon, the owner, was the landlord; defendant Ignatz Schmitt was the tenant f and, in the absence of any express covenant to repair or make alterations on the part of Simon, the landlord, the tenant, Ignatz Schmitt, and his assignee, being in possession as tenants, were legally bound to: make all repairs. The tenant was in possession under the lease, and Simon, the landlord, had no right to interfere with, object to, or to stop the work. His refusing to consent thereto, or his objecting to the repairs, would have been of no avail, unless, possibly, he objected to the repairs, in case his tenant was doing a great injury to his property. Had Simon, the landlord, in passing the premises, discovered that his tenant had men employed in painting the house on the premises, would he have had any right to interfere with the work ? And it cannot seriously be claimed that in such case, had the tenant refused to pay the workmen employed by him under a contract to paint the house, the contractor could have or enforce a lien against the owners of the premises for the painting. Simon, the owner, did not become a party to the contract made by the lessee with the plaintiff ; and only the title or interest of the lessee in the premises could be affected by the lien. The mere consent of the defendant Simon to the repairs and alterations made by his lessee did not obligate him, either legally or morally, to pay for the same, nor did it subject his interest in; the premises to the lien.”

In Havens v. West Side Electric Light Co., 44 St. Rep. 589 ; 17 N. Y. Supp. 580, it is held: “ Where a lessee erects buildings on the land in the absence of express permission in the lease, the owner’s failure to dissent, and his assistance in the erection of the buildings as agent of the tenant, do not constitute consent within the mechanic’s lien act.”

In writing the opinion, Judge Truax says : “ I do not see how it can be said that the work was done and the materials were furnished with the consent of Striker. He was not in possession of the premises, and could neither consent nor dissent to the erection of the building. The work was done and the materials were furnished, not with the consent, but without the dissent, of the owner. As far as the lessee of the premises was concerned, the consent or dissent of the lessor was immaterial. The most that can be said is that Mr. Striker acquiesced, and acquiescence is not consent. We give consent when we yield what we have the right or power to withhold. I cannot find a better exposition of the law on this point than that given by Judge Van Hoesen at special term, common pleas, in Ottiwell v. Watkins. This opinion is not reported, but may be found in the printed book used at the general term. It is as follows: 1 Consent implies a degree of superiority ; at least, the power of preventing. It implies not merely that the person accedes to, but that he authorizes, an act.’ ”

This case was affirmed at general term of the first department, and the decisions reported in 49 St. Rep. 771; 20 N. Y. Supp. 764. In writing the opinion for the court in that case, Judge Van Brunt says: “It seems to us that the clear intent of the statute was to prevent the owner of real estate from permitting improvements to be made upon his property from which he is to derive an ultimate benefit, and which, without his consent and acquiescence, could not be made without incurring some obligation 'to those who have supplied labor and materials for the making of such improvements. But in those cases where the owner has no power to prevent the tenant from making such improvement as he sees fit, and from which the owner can derive no ultimate benefit, it never could have been the intention of the legislature to make such owner liable, and it is doubtful, if they had attempted to do so, whether it lies within their power.”

The logic of the cases cited seems to me invulnerable. For the owner to dissent to making of repairs by the tenant which the tenant had the lawful right to make is an absurdity of which the law is not guilty. The cases which the plaintiff cites to establish the contrary principal are all clearly distinguishable from the case at bar. In Husted v. Mathes, 77 N. Y., 388, the building was erected by defendant’s agent, and her acquiescence therein, with full power to prevent, was rightly held to be her consent. In Burkitt v. Harper, 79 N. Y., 273, the construction of the buildings for which the lien was claimed was not only consented to, but was required by the contract or lease which the owner signed. In Otis v. Dodd, 90 N. Y., 336, the terms of the lease itself required the erection of the buildings for the construction. of which a lien is sought. In Kealey v. Murray, 40 St. Rep., 23; 15 N. Y. Supp. 403, the contract for the erection of the building was made and known to the vendor before he made his contract of sale, and it was therefore held to have been contemplated by the vendor, and thus consented to. In Schmalz v. Mead, 125 N. Y., 188; 34 St. Rep. 779, the vendor’s interest in the land was held to be liable for the lien, on the ground that the vendor’s consent is given in a case where the contract of sale required the erection of the very buildings for the construction of which the lien was sought. In Nellis v. Bellinger, 6 Hun, 560, the building was erected by the son of the owner, with his knowledge and .acquiescence, when he had the full power to prevent tiie same. In Spruck v. McRoberts, 45 St. Rep. 624; 19 N. Y. Supp. 128, the real owner had failed to give notice to the contractor of his interest in the premises, and allowed the contractor to proceed with the work under a contract with another "supposed owner, reaping the benefits of his own deception. He knew of the progress of the work, and acquiesced. These facts were held to -constitute a consent on his part. I do not find any case which holds that the knowledge and acquiescence by a landlord in the repairs of a tenant constitute a consent by the landlord, within the ’ ■meaning of the mechanic's lien law, where the tenant has the ■absolute right to make the" repairs, without the consent of the landlord, which were in no way contracted for by the landlord. This is the case at bar, and I think that, both by reason and authority, the defendant Hatfield has successfully defended.

Judgment ordered accordingly.