author: Ruger, Ch. J.

text:
    Enos Lee, Exr., etc., Resp’t, v. Amy Horton, Admx., Appl’t.

      (Court of Appeals,

      Filed March 1, 1887.)
    1. Law — Knowledge op, peesumed.
    Parties are always chargeable witb knowledge of tbe Law.
    2. Tiutstees — Cast not by agreement divert funds from the purposes: OF THE TRUST.
    Trustees of funds can not by an agreement made witb a beneficiary dispose of tbein in contravention of tbe terms of the trust.
    8. Trust funds — Remain such in the hands of ant person with knowledge.
    Trust funds will be impressed witb that character in tbe bands of any one witb knowledge of tbe facts.
    Appeal from a judgment of general term, second department, affirming a judgment of the trial court in favor of the plaintiff. The facts are sufficiently stated in opinion.

      Clifford A. H. Bartlett, for appl’t; Calvin B. Frost, for resp’t.

       Affirming 35 Hun, 668, mem.

   Ruger, Ch. J.

This action was brought against the administrator of the estate of William J. Horton, to recover money claimed to be due under circumstances related in two written instruments reading substantially alike except as to amount, and being as follows :

“ $303.30.
Peekskill, Oct. 1,1867.
“ At my death, if I die without heirs, I promise to pay to Enos Lee and Ebenezer Strang, as executors of the estate of Ebenezer Strang, deceased, three hundred, and three -Jjp dollars, which is the amount of my share on the final dis-distribution of the said estate, and of which I was to have the use during my life and at my death to go to my heirs, if any, by said will. For value received.
“ William James Hoeton.”

Horton died intestate in 1881, leaving an only child, his heir at law, and the plaintiff demanded repayment of the moneys loaned of his administrators. The complaint also sought to reform the agreement by striking out these words, “ if I die without heirs',” upon the grounds that the same were erroneously and unintentionally inserted therein by a mutual mistake of the parties thereto. The appellant insisted that there was no evidence of any mutual mistake, and that the event had occurred,, which, -by the terms of the contract, precluded the plaintiffs, from recovering the amount of the note.

We think it quite immaterial whether the instrument is called a promissory note or a contract inasmuch as the paper is set out in the complaint in Time verba, and imports an agreement to pay a certain sum of money at the death of the maker upon the condition that he died without heirs.

Whatever the character of the instrument may be it does not affect the right of the plaintiffs to recover in this action, provided the facts alleged and proved in the case entitle them in any view to reclaim the money represented by the note.

The legal effect of the condition inserted in this contract is, if it is held to be a valid condition, to cause the amount of the note to fall into the estate of Horton and be subject to administration by his legal representatives. It is quite obvious that this would result in an unlawful disposition of the money, and that result must have been known to the parties to the contract at the time of its execution. Parties are always chargeable with knowledge of the law, and they must, therefore, have known that the plaintiffs held these moneys in trust and were incompetent to dispose of them, even by the most express agreement, in a manner contrary to the purposes of the trust. Wetmore v. Porter, 92 N. Y. 78.

Any agreement, therefore, by the executors to alienate the trust funds would be illegal, not because it would be immoral or contrary to public policy, but simply because they were wholly unauthorized to make it. It is apparent on the face of the paper that this money was repayable to the plaintiffs upon the-death of the defendant’s intestate irrespective of the question whether he left heirs or not. The note describes the money as. being a fund held by the plaintiffs in trust, in which Horton had a life estate with remainder over to Horton’s heirs. Upon Horton’s death the duty of paying this sum to the remainder-men devolved upon the executors, and they could not, by virtue of any contract between themselves and Horton, become discharged from its performance. Neither could Horton acquire, any title to such moneys by agreement with the plaintiffs.

All of the parties dealt with the fund, knowing it to be the subject of a trust and incapable of alienation, and that its trust character followed it into the hands of any person receiving it with the knowledge of the facts. The executors had authority, upon receiving satisfactory security for its return, to deliver possession of the money to the life tenant for the duration of his life, and so far the contract was valid, but this was the extent, of their power over it, and this plainly appears from the face of the contract.

The condition inserted, that the money was not to be repaid in the event of the life tenant leaving issue him surviving, was clearly illegal, and in law impossible of performance, and could not be set up as a defense against an action by the executors to recover possession of the trust fund. Wetmore v. Porter, supra.

The complaint sets out and the proof establishes all of the circumstances attending the loan of money, and it is clear upon the whole case that the plaintiffs were entitled to recover. No question arises over a misjoinder of actions, or as to the mode of trial, for the record"discloses no objection upon these subjects.

Whether the action be regarded as one to recover money loaned or to reclaim money illegally disposed of by executors, or upon the contract, disregarding, as the plaintiffs had the right to do, the manifest illegal condition attached to the provision for repayment, the plaintiffs were' entitled to judgment.

In either view the cause of action did not accrue until after the death of defendant’s intestate, and the statute of limitations constituted no bar to its maintenance.

The judgment should be affirmed, with costs.

All concur; Earl, J.. in result.

Judgment affirmed.


source: Caselaw Access Project

author: Earl, J.

license: Public Domain

text:
    The National Park Bank of New York, Resp’t, v. James D. Whitmore, et al., Appl’t.

      (Court of Appeals

      Filed February 1, 1887.)
    1. Appeal — Attachment — When the determination op the general TEEM AS TO, WILL BE SUSTAINED.
    Upon an appeal to the court of appeals from a decision of the general term reversing an order made at special term, vacating an attachment, the court will not look at the opinion pronounced below for the grounds upon which the decision proceeded, but, if in the record there appears any ground upon which the general term could in the exercise of its jurisdiction reverse the order of the special term and thus sustain the attachment, its order must be affirmed, although the opinion is not agreed in by the court of appeals.
    2. PREFERENCE — AGREEMENT FOR FUTURE, IS NOT A FRAUD ON CREDITORS.
    An agreement with a creditor for a future preference in case of insolvency is not a legal fraud upon creditors.
    8. Attachment — Pacts warranting the award of.
    A few days previous to making a general assignment the assignors reported themselves entirely solvent and able to pay their debts in full and made a statement of their affairs showing a large surplus of assets over liabilities. Soon after they claimed to be unable to pay their debts in full, and that they were insolvent and proposed to their creditors a compromise of 60 cents on the dollar, payable in 9, 12 and 15 months without security. Evidence tended to show that they had been engaged in a prosperous business and they gave no satisfactory explanation of their sudden alleged insolvency They threatened that unless their offer of compromise was accepted they would make an assignment preferring a certain creditor and that the others would get little or nothing. Efforts were also made with the co-operation of the assignee after the assignment to coerce a compromise and an offer made toa creditorto “ fix it up ” afterwards in case of his consent. Aforeign assignee was elected and a secret promise for a future preference made. Upon an appeal to the court of appeals, Held, that though the proof of fraudulent intent alleged might not be cogent, yet it was sufficient to give the court below jurisdiction to award an attachment and that this_ court was bound by its decision and had no jurisdiction to interfere therewith.

      Appeal from an order of tbe supreme court, general term, first department, reversing an order of tbe special term which vacated witb costs the attachment granted in this action.
    On December 31st, 1885, an attachment was granted in favor of the National Park Bank of New York, and against these defendants on the ground that they were about to make an assignment in fraud of their creditors. On that day the attachment was levied. Thereafter, and on January 2nd, 1886, the defendants made an assignment. Subsequently the defendants moved to vacate the attachment and filed affidavits in support of their motion and the plaintiff in opposition thereto. This motion was heard and granted by the special term, and on appeal to the general term reversed. From this latter determination this appeal was taken.

      Edward W. Sheldon, for appl’ts; Charles W. Wetmore, for resp’t.

       Affirming 40 Hun. 499; 2 N. Y. Stat. Rep., 87.

   Earl, J.

This attachment was granted on the 31st day of December, 1885, on the ground that the defendants were about to assign their property with intent to defraud the plaintiff and their other creditors. On the second day of January thereafter the defendants executed to William Whiting, of Holyoke, Mass., a general assignment for the benefit of their creditors, in which they preferred him for upward of $23,000. Upon motion, made by the defendants at special term, the attachment was vacated, as appears by'the opinion there pronounced, upon the ground that the affidavits upon which the attachment was based did not sufficiently establish the fraudulent intent alleged. From the decision of the special term the plaintiff appealed to the general term, and there the order of the special term was reversed, as appears by the opinion pronounced, on the ground that the defendants had agreed with Whiting at the time of the sale of certain goods to them, that in case of their insolvency or of of an assignment becoming necessary, he should be protected by a preference to the amount of the goods so sold to them and unpaid for. It was held that such an agreement was, in law, a fraud upon other creditors, and rendered an assignment giving a preference in pursuance thereof fraudulent and. void. From the order of the general term the defendants have brought this appeal.

We have frequently held that we cannot look at the opinion pronounced below, in a case like this, for the grounds upon which the discision proceeded, and hence if we find in this record any ground upon which the general term could, in the exercise of its jurisdiction, have reversed the order of the special term, and thus sustained the attachment, its order must be affirmed, although we do not agree with its opinion.

We do not think that the promise of the defendants to make a preferential assignment in favor' of Whiting was, in law, a fraud upon other creditors, or that it was so far conclusive evidence of fraud as to avoid the assignment made in pursuance thereof.

The property which the defendants obtained by their agreement with Whiting added to their visible assets, and - all their assets remained liable to the legal remedies of their creditors until the assignment was made. By adding $23,000 to their assets by goods thus obtained of Whiting, and then preferring him for the same amount in their assignment, no harm was done to or fraud committed upon their other creditors.

It is said, however, that this sale, under a secret promise of a future preference, gave the defendants a delusive appearance of property and solvency, and thus enabled them to obtain credit which they otherwise could not have obtained, and that thus the agreement necessarily operated as a fraud upon other creditors. But it cannot be maintained that an agreement is fraudulent which simply adds to a debtor’s assets, gives him the appearance of solvency which he does not in fact possess, enables him to obtain credit and continue his business, and thus postpones impending failure. A debtor may obtain credit by a promise to pay in the future, either in cash or in property, or by promising to give his check or an indorsed note, or a confession of judgment. Neither such a promise nor its performance is a legal fraud upon any one ; and why may he not promise to give security upon the property purchased, or other property? Such a promise, honest, in fact, has never been held to be a fraud, or to work a fraud upon creditors. Security honestly given in pursuance of such a promise relates- back to the date of the promise, and, except as to intervening rights, is just as good and effectual as if given at the date of the promise; and it has generally been so held even in bankruptcy proceedings, Bump Bankruptcy, (10th ed.), 821; Forbes v. Howe, 102 Mass. 426; Bank of Leavenworth v. Hunt, 11 Wall, 391; Burdick v. Jackson, 7 Hun, 488; Ex parte Ames, 1 Low. 561; Ex parte Fisher, L. R., 7 Ch. App. 636; Ex parte Kilner, L. R., 13 Ch. Div. 245; Mercer v. Peterson, L. R., 2 Exch. 304; s. c., L. R., 3 Exch. 104.

But here the agreement was to make the preferential assignment in case it became necessary to protect the creditor; and it is further claimed that such a conditional agreement is a fraud upon other creditors. A failing debtor may make an assignment preferring one or more creditors, because he is under a legal, equitable or moral obligation to do so, or he may do it from mere caprice or fancy, and the law will uphold such an assignment honestly made. If he may make such an assignment without any antecedent promise, why may he not make it after and in pursuance of such a promise ? How can an act other-' wise legal be invalidated because made in pursuance of a valid or invalid agreement honestly made ? In Smith v. Craft, 11 Biss. 340, Judge Gresham held that such a conditional agreement for a future performance was a fraud upon creditors. But in the same case, in 17 Fed. Rep., 705, upon a rehearing, Judge Woods held that the same agreement was not fraudulent and in a very satisfactory opinion showed that such an agreement as we have here, for a future preference in case of insolvency, is not a legal fraud upon creditors. See, also, Walker v. Adair, 1 Bond, 158; Anderson v. Lachs, 59 Miss. 111; Spaulding v. Strang, 37 N. Y., 135, 38 N. Y., 1; Haydock v. Coope, 53 N. Y., 68.

This agreement did not create any lien, legal or equitable, upon the property of the defendants. It was not an agreement for a future lien upon the specific property, which is sometimes held to' create an equitable lien which may be enforced in equity. It was not an agreement for any lien at all. It was simply an agreement, in case of an assignment by the defendants, to prefer Whiting. The agreement did not bind defendants’ property, nor incumber it, but left it subject to all the remedies of their creditors, and it neither hindered nor delayed those creditors. They could have made the same assignment without a previous agreement, and it is impossible to perceive how the agreement worked any .legal harm to any one. ' It is not important to determine whether this was an agreement of which a court of equity would enforce .specific performance; but we do not believe it was, and think it must stand, both in law and equity, like an agreement to pay at a future day.

But we think there were sufficient facts set forth in the affidavits to give the court jurisdiction to determine whether or not the defendants, in threatening to make and in making the assignment, were actuated by a fraudulent intent. A few days before the assignment was made, the defendants reported that they were entirely solvent, and could pay all their debts in full, and they made a statement of their affairs showing a large surplus of assets over liabilities. Soon after these representations, they claimed that they could not pay their debts in full, and that they were insolvent, and proposed to their creditors a compromise of 50 cents on the dollar, payable in 9, 12, and 15 months, without security. The evidence tended to show that they had been engaged in a prosperous business, yielding them large profits, and they gave no satisfactory or intelligible explanation of their sudden alleged insolvency. They threatened that, unless their offer of compromise was accepted, they would make an assignment preferring Whiting, and that then the rest of their creditors would get little or nothing. The efforts of the defendants, with the co-operation of their assignee after the assignment, apparently to coerce a compromise at 25 cents on the dollar, tbeir offer “ to fix it up ” with a creditor afterwards if be would assent to a compromise, tbeir selection of a foreign assignee, tbe relations between him and them, and tbe secret promise of a future preference, are also pertinent facts. Tbe court at general term looking at no one fact, but at all tbe facts before and after tbe assignment, could, we think, find that tbe assignment was threatened and made, not solely for tbe honest purpose of devoting their assets to tbe payment of their just debts, but, while not actually insolvent, to coerce a favorable compromise from tbeir creditors, and thus secure a benefit to themselves. Tbe proof of tbe fraudulent intent alleged may not have been very cogent, but it was sufficient to give the court below jurisdiction to award tbe attachment, and hence we are bound by its decision, and have no jurisdiction to interfere therewith.

Tbe appeal should therefore bei dismissed, with costs.

All concur.


author: Per Curiam.

text:
    People of the State of New York, Appl’ts, v. Henry K. Stevens, Resp’t.

      (Court of Appeals,

      Filed February 1, 1887.)
    Criminal Law — Appeal — Supreme coubt must exebcise its discretion —Coubt op appeals.
    On an appeal from a verdict In a criminal case the prisoner is entitled to a review of the facts and an exercise of the discretionary power vested in the general term of the supreme court. Where the reversal is made hy said court solely on questions of law the court of appeals will not review it, hut remit it to the general term to consider the questions of fact and to exercise its discretion.
    Appeal by tbe People from an order of tbe supreme court, general term, fifth department, reversing “ upon grounds of error of law and not of fact or as matter of discretion ” a judgment of tbe Erie county court of sessions and granting a new trial on a conviction of a person under indictment for grand larceny.

      Geo. T. Quimby, Dist. Atty., for appl’t; John Laughlin, for resp’t.

       Reported below, 38 Hun, 62.

   Per Curiam.

Tbe order of reversal states merely that it was made on questions of law. It does not state that the court has considered tbe questions of fact or exercised the discretion which the statute confers upon it. We have decided that this court will not review an order of reversal in such' a case, unless it shows that the court has exercised its discretionary powers. See People v. Boas, 92 N. Y. 560-564; Same v. Conroy, 97 N. Y. 62-72; Harris v. Burdett, 73 N. Y. 136. Although the court in tbe present case puts its decision npon a question of law, we cannot say it would not have reached the same result had it exercised its discretion,.and entertained a different opinion on the question of law. The prisoner was entitled to a review of the facts, and the exercise of the discretionary power of the court, which he might lose if the case should be disposed of solely on a question of law.

The case should therefore be remitted to the general term to consider the questions of fact, and exercise its discretion.

All concur.


author: Danforth, J.

text:
    John N. Granville, Resp’t, v. The New York Central and Hudson River R. R. Co., Appl’t.

      (Court of Appeals,

      Filed February 8, 1887.)
    1. Appeal — By defendant to coubt of appeals — What is the amount IN CONTROVERSY — CODE ClV. PliO., § 191.
    The complaint in this action demanded $400 damages, upon a trial before a referee this sum was awarded with $156 interest. Judgment was entered in favor of tha plaintiff for the sum.of $556 with costs and disbursements. Upon a motion made by the plaintiff to dismiss the defendant’s appeal to the court of appeals because the amount in controversy was less than $500. Meld, that neither the limitation expressed in the complaint nor the method by which the referee ascertained and made up the aggregate of the damages was material. That the amount in controversy upon the defendant’s appeal to the court of appeals was the amount of the judgment as rendered and from which the appeal was taken.
    2. Same — Code Civ. Pbo.. § 191, sued. 3.

      Meld, that upon an appeal by the plaintiff from the judgment in such an action the sum for which the complaint demands judgment becomes material (Code Civ. Pro., §191, subd. 3), but that the provision of the Code making it so had no application to the present case.
    Motion to dismiss an appeal from a judgment of the supreme court, general term, fourth department.

      M. D. Barnett, for the motion j G. 1>. Prescott, opposed.
   Danforth, J.

The plaintiff sues for injuries to personal property caused by defendant’s negligence, and after issue joined, was upon trial before a referee awarded $400, with $156 interest making a total of $556, and for this sum judgment was ordered in his favor. The record shows that judgment was so entered. “ Damages $556 and $357.44 costs and disbursements.” Upon appeal to the general term, it was affirmed, and from the judgment of affirmance, the defendant appealed to this court. The plaintiff moves to dismiss the appeal upon the ground as stated in the notice of motion “ that the amount in controversy in this action is less than $500.” This contention is put upon the comolaint, which alleges damages only to the amount of $400, and demands jndgment accordingly. But neither this limitation, nor the method by which the referee ascertained and then made up the aggregate of damages is material. The matter in controversy in this court upon the defendant’s appeal is the amount of the judgment as rendered, and from which the appeal is taken. Brown v. Sigourney, 72 N. Y. 122. And if that, excluding costs, is not less than $500, we have jurisdiction to review it. A different rule restricts the plaintiff. Upon an appeal by him from a judgment in such an action, the sum for which the complaint demands judgment becomes material. Code, § 191, subd. 3. But the provision of the Code which makes it so has no application here. .

The motion should be denied, with $10 costs.

All concur.

       Affirming 34 Hun, 224.


text:
    Mary Byrne, an infant, by Guardian, Resp’t, v. New York Central and Hudson River R. R. Co., Appl’t.

      (Court of Appeals,

      Filed February 8, 1887.)
    1. Negligence — Railroad — Crossings not public highways.
    On the trial for an action for damages caused by a car of the defendant being backed against the plaintiff and thus injuring her, there was evidence tending to show that there was an alley at the place where the plaintiff was injured which was extensively and notoriously used by the public, without objection. Held, it was for the jury to determine to what extent and in what manner the alley was used by the public, and the amount of care defendant was required to exercise.
    2. Same — What care required, a question for the jury.
    The defendant was backing its train towards the crossing and it was bound to use reasonable and ordinary care so as not to endanger those who might be lawfully upon its tracks at that crossing. What care and . precautions if any, besides ringing the bell, it should have taken upon a train thus backing, were properly left for the jury to determine.
    8.'Same — Ringing bell, etc. — Reasonable notice.
    While not absolutely bound to ring a bell or blow a whistle, yet. it was bound to give some notice reasonable and proper under the circumstances in approaching the crossing.
    Appeal from a judgment of the supreme court, general term, third department, affirming a judgment of the Rensselaer county circuit, entered on a verdict in favor of the plaintiff in an action to recover damages for injuries inflicted on plaintiff by the defendant at a railroad crossing.
    The facts are sufficiently stated in the opinion.

      Esek Cowen, for appl’t; N. A. Parmenter, for resp’t.

       Affirming 36 Hun., 647 mem.

   Earl, J.

There was some controvei’sy upon the trial of this action as to whether or not the place where the plaintiff was injured was a traveled public highway, and the trial judge submitted the case to the jury upon the assumption that it was not. There was, however, evidence tending to show that there was an alley at the place where the plaintiff was injured, which was extensively and notoriously used by the public without any objection on the part of the defendant, or any question as to the right of all persons so to use it; and the judge charged the jury that it was a question for them to determine to what extent and in what manner the alley was used by the public; that if they came to the conclusion that the right of passage was there exercised by the public, as claimed by the plaintiff, notoriously and constantly previous to and at the time of the accident, then they were required to determine the amount of care and prudence which the defendant was required to exercise in approaching and crossing the alley; and that then the defendant, while not absolutely bound to ring a bell or blow a whistle, yet was bound to give some notice and warning, reasonable and proper under the circumstances, in approaching the crossing, and that it was for them to determine whether such notice and warning was given. The law as thus laid down was fully warranted by the case of Barry v. New York Cent. & H. R. Co., 92 N. Y., 289. In that case it was held that where the public, for a series of years, had been in the habit of crossing the railroad, the acquiescence of the defendant in the public use amounted to a license- or permission to all persons to cross at'that point, and imposed the duty upon it, as to all persons so crossing, to exercise reasonable care in the movement of its trains so as to protect them from injury. We think that case, notwithstanding the criticism of the learned counsel for the defendant in this case, is in entire harmony with the previous eases of Nicholson v. Erie R. Co., 41 N. Y., 525, and Sutton v. New York Cent. & H. R. Co., 66 N. Y., 243. In the three cases the distinction between active negligence causing an injury, and mere passive negligence, was clearly pointed out. In the Barry case the railroad company carelessly backed its cars against the plaintiff’s intestate, and thus caused his death. In the other two cases there was no active negligence, but simply an omission properly to fasten the cars which without any human agency moved and thus ran against the persons injured.

The recent case of Larmore v. Crown Point Iron Co., 101 N. Y., 391, 1 N. Y. St. Rep., 43, was similar. There it was decided that a person who went upon the land of another, without invitation, to secure employment from the owner of the land, was not entitled to indemnity from such an owner for an injury received from a defective machine on the premises not obviously dangerous which he passed during the course of his journey ¿ and that, although it might be shown that the owner could have ascertained the defect by the exercise of reasonable care, yet that he owed no legal duty to a stranger so coming upon his premises which required him to keep the machinery in repair. That was plainly a case of mere passive negligence, — an omission to keep a machine in repair which was not obviously dangerous. Here the ground of the defendant’s liability is that its agents, engaged actively in its service, carelessly backed a car against the plaintiff, and thus injured her. If she had been injured, from a defect of the car or engine not obviously dangerous, the case would have been like the Larmore Case. If the car had moved upon her without any human agency, simply because it had not been sufficiently secured or fastened, then it would have been like the Cases of Nicholson and Sutton. There are points of resemblance and points of difference between the Barry Case- and the other cases. Taking the points of resemblance, a plausible argument may be made to show that the cases conflict. But. taking the points of difference, then, while the distinction between the Barry Case and the other cases is not so plain as a traveled highway, it is sufficient to require the application of different principles, and the reaching of a different result.

The facts of this case, so far as they relate to the accident-are substantially the same as those proved upon the trial which, was under review in 83 N. Y., 620, when the ease first came to this court. There we held that there was evidence sufficient for the consideration of the jury both in reference to the plaintiff’s contributory negligence, and the negligence on the part of the defendant; and we see no reason to reconsider the conclusion in reference to those matters then reached. It is quite true that the evidence to establish freedom from negligence on the part of the plaintiff is very weak, and liable to much criticism, and yet we are constrained to think, as we did before, that it was proper for submission to the jury. .

There was evidence tending to show that no bell was rung or whistle blown upon the engine attached tothe train in approaching this crossing, and the court charged the jury that the defendant was not absolutely bound to ring a bell or to blow a whistle, but that it was bound to give such notice or warning of the approaching train as was reasonable and proper under the circumstances; that it was bound to give, by bell, whistle, or otherwise, such reasonable notice as the jury should find the circumstances required. The charge, as thus made, was excepted to on the part of the defendant; and its counsel requested the court to charge that, if the bell was rung as testified to by defendant’s witnesses, that was a sufficient warning of the approach of the train, and that the defendant was not bound to give any other notice or warning. The judge refused so to charge, and the defendant’s counsel excepted. In these rulings there was. no error. The defendant was backing its train towards this crossing, which was exclusively and notoriously used by the public, and it was bound to use reasonable and ordinary care so as not to endanger those who might be lawfully upon its track at that crossing. And what care and precautions, if any, besides ringing the bell, it should have taken upon a train thus backing, were properly left for the jury to determine ; and so it was held in the Barry Case. There, as here, there was a dispute as to whether the bell was rung or the whistle blown as a warning for the approach of the train. There the court charged the jury that, in running its cars, the defendant was bound to give such notice and warning as in their judgment would be regarded as reasonable and proper, .and calculated fairly to protect the lives of persons using the crossing; that they need to determine whether, in backing the train, it observed that care and caution which was called for under the circumstances; and that it had a right to back the train, but, under the circumstances of the case, the question is whether it had the right to back it without giving warning in some way to the intestate. The defendant’s counsel then requested the judge to charge the jury, that if the bell was rung, the defendant was not bound to give any other warning; and in reply to the request the judge said that he left it for the jury to determine whether, under the circumstances, the ringing of the bell would have been such a warning as was requisite. This court held that there was no error in the charge as made, or the refusal to charge. Judge ANDREWS in his opinion said: “We think it cannot be held, as matter of law, under the circumstances of this case, that the ringing of the bell fulfilled the whole duty resting upon the defendant.”

We find no error in the record, and the judgment should be .affirmed, with costs.

All concur.


author: Andrews, J.

text:
    Peter A. Tilyou, Appl’t v. Town of Gravesend et al., Resp’ts.

      (Court of Appeals,

      Filed February 8, 1887.)
    COMMISSIONERS OP COMMON LANDS OP GRAVESEND — POWER TO RENEW LEASES.
    The commissioners of common lands in the town of Gravesend were not authorized on March 1st, 1880, to renew an existing lease for a term to commence on the expiration of the prior lease before the last year of the unexpired lease.
    Appeal from a judgment of the supreme court, general term, second department, affirming a judgment of the Kings county special term in favor of defendant in a lease of certain lots of land in the town of Gravesend declared valid and to .enjoin defendant from perfecting the sale and purchase thereof.

      Edward S. Rapallo, for appl’t; Wm. J. Graynor, for resp’t.

       Affirming 34 Han, 631 mem.

   Andrews, J.

This seems to be a reasonably plain case.

The question is, whether the commissioners of common lands in the town of Gravesend, in granting to plaintiff, on March 1, 1880, a renewal of the lease of lots 24 and 27, of the common lands of the town, for a term of ten years from November 12, 1882, the date of the expiration of the term of the lease under which she then held the premises, were acting -within their authority. The determination of the question depends upon the construction of two resolutions passed by the electors of the town in town meeting assembled, one April 4,1871, and the other April 2, 1878. The only authority possessed by the commissioners was conferred by those resolutions. The precise point in controversy is whether the commissioners were authorized to renew an existing lease for a term to commence on the expiration of the prior lease, before the last year of the unexpired lease.

The resolution of April 4, 1871, so far as it is material here, is-as follows : “ Resolved, That the common lands of the town of' Gravesend, or Coney Island, shall hereafter be let only at public auction on the premises to be let, or at the town house in this town, to the highest bidder, in parcels of not more than three hundred feet front each — except Coney Island Point, which may be let in one parcel as at present — on notice specifying the time and place of letting, and describing the premises to be let, which said notice shall be published in the Brooklyn Daily Ragle and Union each, once in each week, for four weeks immediately prior to such letting. No lot shall be let at a time more than one year prior to the expiration of any existing lease thereon, and no lot let for a longer period than ten years.” The-language quoted is followed by a provision for compensation for improvements, to be made by the incoming to the outgoing tenant, when any lot previously under lease is let to a person other than the former lessee, as to Avhich provision no question arises in this case.

The resolution of April 2, 1878, is as follows: “ Resolved,. That the resolution in relation to leasing common lands in the town of Gravesend, passed at a town meeting held in the town of Gravesend, April 4, 1871, be amended by adding thereto the following: ‘ The commissioners of common lands are also authorized to renew any existing lease or leases of common lands belonging to said town of Gravesend, upon terms as they may deem most advantageous for said town.’ ”

It is claimed on the part of the appellant that the resolution of April 2, 1878, conferred authority on the commissioners to renew leases, without limitation as to the time when the power should be exercised, and that this power was not subject to the-restriction contained in the resolution of April 4, 1871, that “ no lot shall be let at a time more than one year prior to the expiration of any existing lease thereon.”

We cannot assent to tbis construction of the resolution of 1878. Under tbe resolution of 1871, no lease could be granted except upon competitive bidding at public auction. Tbe commissioners bad no power to renew existing leases. In all cases the right to a lease of any town lands, whether held under an existing lease or not, vested in tbe highest bidder at the public letting. The prior lessee acquired no preference, and he could demand a new lease only in the character of purchaser of the right at the public sale. Unless he was the highest bidder, his interest terminated with his existing lease, subject only to the right of compensation for improvements, as provided in the resolution.

It is quite manifest that under the resolution of 1871 a lessee who had made valuable improvements during his term, or had built up a valuable business in connection with the premises, might at a re-letting at public auction be placed at a disadvantage. The town authorities also were deprived of any discretion, and although, in view of the circumstances, they might think it for the best interest of the town to continue the existing tenancy, they could not elect to do so, nor could they give any effect to equitable considerations. It was, we think, the object of the resolution of 1878 to relax the stringent rule prescribed in the resolution of 1871, as applied to common lands held under lease, by taking them out of the general rule requiring a public letting, permitting the commissioners to renew existing leases upon such terms as might be agreed upon between themselves and the tenants in possession.

But the resolution of 1878 in no other respect interfered with the scheme of the resolution of 1871. It left unaffected the provision in the resolution of 1871, that “ no lot shall be let at a time more than one year prior to the expiration of any existing lease thereon, and no lot for a longer period than ten years.”

It is obvious that these restrictions were imposed in view of the contingency of an advance in the value of the town property on Coney Island, and to secure to the town the greatest practicable rental therefrom. The amendment of 1878 did not abrogate these restrictions. They in fact served a more important purpose than before, and operated as a check upon fraudulent and collusive proceedings on the part of the town commissioners.- These restrictions, moreover, did not have their origin in the resolution of 1871. They are found in the resolution of 1866, passed before the system of public lettings was adopted; and the resolution of 1878, which restored to the commissioners the power to renew leases which they possessed under the resolution of 1866, contains no indication that it was the intention to depart from the policy established in 1866, as to the time within which the power to make renewals should be exercised.

The general rules of construction sustain, we think, the construction put by the courts below upon the resolution of 1878, and it follows that the judgment declaring the lease in question to be void must be affirmed.

All concur.

Elleh Fellow, Appl’t v. Town of GbaveseNd, Resp’ts.

Judgment affirmed with costs, on opinion in above case.


text:
    Thomas McCraith, Resp’t, v. National Mohawk Valley Bank, Appl’t.

      (Court of Appeals,

      Filed March 1, 1887.)
    1, CONTRACT TO PROCURE RELEASE OP MORTGAGE — STATUTE OP FRAUDS— Interest in land.
    One James Dygert conveyed to the plaintiff certain real estate, taking back a mortgage for the purchase money. Defendant owned a prior mortgage on the premises, and Myers and Basbach also owned another prior mortgage on the same premises and other lands. The defendant requested plaintiff to pay the amount of the purchase money mortgage to it, and promised plaintiff that if he would do so it would procure for plaintiff a release of the premises from the Myers and Basbach mortgage. The plaintiff did as requested, but deferfdant failed to procure the release. Sold, the agreement was not within the statute of frauds. That it was not a contract for the sale of lands, or of any interest in lands.
    2. Same — Banking corporations — Ultra vires.
    An agreement by a bank to procure a release- of a mortgage held by a third person, is not primarily an agreement relating to -banking, yet when made to secure payment of a debt due the bank it is not ultra vires.

    Appeal from a judgment of the supreme court, general term, fourth department, affirming a judgment of the circuit court entered on a verdict in favor of plaintiff for damages for breach of contract. .
    The defendant is a duly organized banking corporation. On January 1st, 1876, one James M. Dygert conveyed certain real estate to plaintiff taking back a mortgage to secure the payment of $1,363,81. The defendant owned a prior mortgage on- the premises of $5000 and certain persons named Myers and Rasbach also owned and held another prior mortgage of about $4000 on the same and other lands. The defendant through its cashier requested the plaintiff to pay the amount unpaid on the said Dygert mortgage to the defendant, and promised the plaintiff among other things that he would procure for the plaintiff a release of the premises from the mortgage held by Myers and Rasbach. The plaintiff paid defendant $1,393.33 who failed to procure the release of tlie Myers and Rasbaeb mortgage and afterward tbe premises were sold on tbe foreclosure of tbe said Myers and Rasbaeb mortgage. This action was brought to recover damages of defendant, resulting from tbe breach of tbe agreement to procure the release.

      Amos S. Prescott, for appl’t; Smith & Steele, for resp’t.

       Affirming 37 Hun., 641, mem.

   Per Curiam.

There was a conflict of evidence as to tbe circumstances under which tbe bank took tbe plaintiff’s mortgage. It was claimed on the part of tbe plaintiff that tbe bank held it as collateral security for certain obligations held by the bank against Dygert, and, therefore, that it had an interest in tbe security when it was paid to the bank by tbe plaintiff. The bank, on tbe other hand, insisted that it held the mortgage simply as the custodian of Dygert, for the simple purpose of receiving payments which might be made thereon by the plaintiff. This issue was sharply contested, and was found by the jury against the defendant.

So, also, there was a conflict of evidence as to the verbal agreement alleged by the plaintiff to have been made by the defendant, through its cashier, with him, to the effect that, if the plaintiff would pay the mortgage to the bank, the bank would release their mortgage on the plaintiff’s lot, and would also procure for the plaintiff a release of the Rasbach and Myers mortgage. This issue also the jury found against the defendant, and in favor of the plaintiff.

The findings of the jury upon these issues are not unsupported by evidence, and this court cannot review their decision on the facts. Upon the findings of the jury there was ample consideration for the agreement of the bank to procure a release of the Rasbach and Myers mortgage.

It must be assumed that the plaintiff paid his mortgage to the bank before maturity, upon the faith of the promise of the bank. He thereby changed his position and did what he was under no obligation to do. The agreement was not within the statute of frauds. The undertaking of the bank was original and not collateral. Prime v. Keohler, 77 N. Y. 91: Milks v. Rich, 80 id. 269, and cases cited. Nor was it a contract for the sale of lands or of any interest in lands.

"We are also of opinion that- the contract on the part of the bank was not ultra vires. The bank had an interest in securing payment of its obligations against Dygert. The arrangement with the plaintiff was an ordinary business transaction, and within the usual power of a business corporation, and although an agreement by a bank to procure a release of a mortgage held by a third person is not primarily an agreement relating to banking, yet when made to secure payment of a debt due to the bank, it cannot be said to be foreign to the purposes, or beyond the powers of the corporation.

We think there was no error in the rule of damages. The opinions in the court below are full and quite satisfactory upon all the points involved, and further elaboration is unnecessary. The judgment should be affirmed.

All concur.


author: Peckham, J.

text:
    Frederic E. Hubbell, by John W. Hubbel his guardian ad litem, Resp’t, v. The City of Yonkers, Appl’t.

      (Court of Appeals,

      Filed March 1, 1887.)
    1. Municipal Corporations — Extent op obligation to keep highways IN SAFE CONDITION.
    A municipal corporation is not an insurer of the safety of persons traveling its streets, nor is it bound to furnish an absolutely safe and perfect highway under all circumstances. It is bound to exercise active vigilance towards keeping its streets in proper repair.
    2. Same — Poweb given by chabteb to make stbeets safe will not VABY THIS PBINCIPLE.
    This principle is not altered by a special provision contained in the charter of a city giving it power through its common council “to compel or cause the making and repairing of railings at exposed places in the streets; ” “exposed ” places there means “ dangerous ” places.
    Appeal from a judgment of the supreme court, general term, second department, affirming a judgment of the Westchester circuit, entered on a verdict for plaintiff.
    The facts are sufficiently stated in the opinion.

      Joseph F. Daly, for appl’t; Malcolm S. Keyes, for resp’t.

       Reversing 35 Hun. 349.

   Peckham, J.

The plaintiff sustained an injury by falling over an embankment while out riding in the City of Yonkers, and recovered damages in the trial court against the City for its negligence in the treatment of the street or highway of the City where the accident occurred.

There is substantially no dispute about the facts upon which the defendant’s liability is based, and briefly they are as follows : Linden Street is a street in the City, running north and south, the road bed in which was at the time in question macadamized along its entire width of thirty feet, and was in good condition. Side-walks were placed on each side of the road bed, ten feet wide, and separated from it by a curbstone eight inches high. On the west side of the west sidewalk there was an embankment at one point of the street, about twelve feet deep, running some number of feet along the sidewalk and not guarded by any fence, wall, or other obstruction. It had been in this condition for ten or more years, or ever since the laying out and opening of the street, and so far as appears in the evidence the accident in question was the first that had ever happened, of such a nature.

The accident happened on the 26th of May, 1883, about 6 o’clock P. M. and while it was daylight. The way in which it occurred may be told in the language of the plaintiff.

“ On the day of the accident I was going up the street and met my cousins, who were getting ready to take a drive, and as they were going down to the village I thought I would ride rather than walk. They drove south on Waverly Street to Park Hill Avenue, and then up the hill to Linden Street, and when we got along Linden Street there was a bicycle came along, and the horse became frightened at it and commenced to shy, and in trying to pull him away from there it pulled his •head so that the blinds hid the embankment or stone wall, and in so doing he stepped off one foot, and the two young men were on the opposite side from the wall and they had a chance to get out; but I had no chance and I went over, and that was the last I remember until,” etc. They were going north and consequently had this embankment on their left.

Another witness for the plaintiff makes it perhaps a little plainer. He said: “ I met a bicycle. I was driving and my horse commenced to shy off and I tried to pull him on the right side of the street, but in spite of me he crowded off to the left * * * The other young fellow that was in the wagon with me grabbed hold of the lines and helped me to pull, but we could not pull him to the-In spite of us he ran off the bank. He did not run any considerable distance. He just shied right out and went off the bank. It was all very sudden. It was very quick; it could not have been over ten seconds. I was in the middle of the wagon, Mr. Hubbell on the left side — west side— and Brodt on the east. Brodt jumped out as we went over the' curb, and I jumped out as the horse jumped off the walk; Hubbell tried to jump out but did not have time.- Horse, wagon and Hubbell all went over the embankment together.” In regard to the horse the last witness said: “ I have always driven the horse; he belonged to me. I met bicycles before- and he never minded them. The bicycle came upon us suddenly., I saw it not far ahead. . . I did not think the horse would run out at all and had no reason to believe that the horse would be frightened at it. Linden Street is much traveled and has been for these years as far as I know.”

Upon the evidence there can be no valid claim of any negligence on the part of the plaintiff, who was a young man of twenty years, nor upon the part of the driver of the wagon.

The only issue in the case arises as to the defendant’s negligence. The city is not an insurer of the safety of persons traveling its streets, nor is it bound to furnish an absolutely safe and perfect highway under all circumstances. It is bound to exercise active vigilance toward keeping its streets in proper repair, and still a street may be out of repair and no liability exist against tbe city therefor, depending upon the question whether the city had failed to exercise that active vigilance which it was its duty to do. Here was a roadway in first rate condition for its entire width — thirty feet — and bounded on each side by a curb eight inches in height, and then separated from this western embankment by ten feet more of sidewalk. Can it be fairly maintained that there was any lack of that vigilance demanded from a city, in failing to fence this embankment from horses traveling on the road, which should at that particular spot become frightened and unmanageable, and should then rush over the curbstone and across the sidewalk, and jump down this embankment? We think not. We are of opinion that this was one of that class of accidents whose occurrence is so rare, unexpected and unforeseen, that to hold the city responsible for a failure to guard against it is to hold it to a most extensive liability, and to cause it to become substantially an insurer against any accident which no human care, skill or foresight could prevent. This is a higher degree of responsibility than the law exacts. The very fact that for ten years or more this embankment had been in the same condition, and that so far as appears no similar accident had occurred, is most cogent evidence of the lack of any_ negligence on the part of the city in failing to guard this spot. It is upon this principle that several cases have been decided in this court, even with reference to carriers of passengers, in which case the law exacts a higher degree of care than it does in the case of municipal corporations in relation to their highways. That which never happened before, and which in its character is such as not to naturally occur to prudent men to guard against its happening at all, cannot, when in the course of years it does happen, furnish good ground for a charge of negligence in not foreseeing its possible happening and guarding against that remote contingency. See, on this subject, Dougan v. Transportation Co., 56 N. Y. 1; Cleveland v. Steamboat Co., 68 id. 306; Loftus v. Terry Co., 84 id. 455.

This is unlike the cases of Kennedy v. Mayor, etc., 73 N. Y., 365; and Macauley v. Mayor, etc., 67 N. Y., 602. In the first case it was very properly argued that the absence of the string piece on the dock was a plain neglect to do what ordinary prudence would suggest as proper in fulfillment of the duty of the city to keep the dock in a safe condition and that its absence was the proximate cause of the injury. This court held that in deciding the question arising upon.granting a motion for a nonsuit, it was to be assumed that it was the duty of the city to put a string piece upon the dock, and that it had negligently omitted to perform it, and that there was no negligence on the part of the plaintiff in the management of the horse and cart. This was to be assumed because the evidence upon the question was such as to require its submission to the jury instead of being passed upon adversely by the court.

The case of Macauley was where the negligence of the defendant caused the fright of the horse, and the fact that the horse was momentarily by fright beyond the control of the driver did not, as matter of law, excuse the defendant’s negligence which caused the injury. In both cases the injury resulted from a cause which the court said might be held by the jury to be the neglect’ of the defendant to perform its duty, while in this case we cannot see that as to drivers on this street there was any duty to fence this embankment, or that a failure to fence could be construed as negligence on the part of the city, for the reason already given, that an accident of this nature, caused by an unruly or - uncontrollable horse, was such a remote and improbable occurrence that negligence could not be founded upon a failure to foresee and guard against it.

The principle is not altered by the special provision contained in the charter of defendant, giving it power through its common council “ to compel or cause the making and repairing of railings at exposed places in the street.”

“ Exposed places,” with reference to such a case as this, must mean “ dangerous places,” and, considering the facts in this case, we do not think this was such a dangerous or exposed place that a failure to guard it with railings could fairly be called negligence. The cases cited by plaintiff’s counsel, as to the duty of a town or city to guard the edge of a road passing along a precipice, do not control the decision of this ease. Those are cases where the roadway itself runs along such a place, and danger from the want of a railing was naturally to be apprehended, while here the roadway was perfectly safe, in first-class condition, bounded by a gutter or curb-stone eight inches high, and ten feet of sidewalk, and where no danger from the embankment was possible until the horse should leave the road, drag his wagon over this curbstone and sidewalk, and then fall over the “ exposed ” place. This could not be done unless voluntarily or by reason of the fright of the horse making him uncontrollable; and as to the latter contingency, we have already discussed it. The same reasons prevail as to railings on a bridge, for their absence would strike everyone as a plain, if not criminal, neglect of even ordinary care.

We think this accident was such a remote contingency that a failure to guard against it was not negligence, and that it was error to submit the question to the jury.

The judgment must be reversed and a new trial ordered; costs to abide the event.

All concur, except Dakfobth, J., not voting.


text:
    Orlando J. Childs, et al., Resp’ts, v. The Harris Manufacturing Co., Appl’t.

      (Court of Appeals,

      Filed March 1, 1887.)
    1. Pbactice — Summons — Service ot upon a foreign CORPORATION.— Code Civ. Pro., § 432, subd. 3.
    The defendant, a foreign corporation, sold to these plaintiffs harrows manufactured by them and upon a sufficient consideration by a writing executed in the state of its incorporation, guaranteed the plaintiffs the right to purchase, sell and deal in its harrows and to indemnify them from all prosecution for so doing, by any person claiming it to be an infringement upon any patent, provided notice should be given of such proceeding and it be allowed to take charge of the case. An action was commenced for this alleged cause against these plaintiffs and they at once notified the defendant. The guarantor failed to take charge of the defense and judgment was entered against these plaintiffs and payment thereof enforced by execution. They thereupon issued a summons as in the supreme court of this state and served it within the state upon a director of the company.

      Held, that this was sufficient service upon the corporation if the cause of action arose in this state and the party served was in fact one of the defendant’s directors. Code Civ. Pro., § 432, subd. 3.

      3. Contract to indemnity — Action tor breach op — Where cause op ACTION ARISES.

      Held, that it was immaterial that the contact to indemnify was made without the state, its obligation was to be discharged wherever the plaintiffs were vexed by litigation. And the cause of action arose when for want of a defense judgment went against them and at the place where that judgment was recovered.
    Appeal from an order of the supreme court, general term, fourth department, affirming an order made at the special term of Onondaga county, denying a motion to set aside the service of a summons in an action against a foreign corporation.
    The opinion states the case.

      Louis Marshall, for appl’t; H. J. Cookingham, for resp’t.

       Affirming 42 Hun. 653 mem.

   Danforth, J.

The facts presented by this appeal are as follows : The defendant, a corporation created under the laws of Wisconsin, has its office in that State, where it is engaged in the manufacture and sale of harrows, some of which were bought by plaintiffs, who are dealers in agricultural implements.

Some question arose as to whether the machine was an infringement upon letters patent issued to other parties, and upon a consideration deemed sufficient, the defendant, in a writing executed in Wisconsin, guaranteed to the plaintiffs the right to purchase, sell and deal in its harrows, and to indemnify them from all prosecutions for so doing, by any person claiming it to be an infringement upon any patent, provided .notice be given of such proceeding and it to be allowed to take charge of the case.

An action was commenced for this alleged cause against these plaintiffs, and they at once notified the defendant and required it to take charge of its defense. The guarantor failed to do so, and judgment went against these plaintiffs for $8,154.45, payment of which was enforced by execution. They thereupon issued a summons as in the supreme court of this State, and served it upon one Crosby, in the city of New York, upon the assumption that he was director of the corporation.

The defendant moved the court to set it aside upon the grounds : 1. That the defendant is a foreign corporation, and the service was not upon the president, treasurer or secretary of the defendant, or otherwise its representative for that purpose. 2. That the corporation has no property within this State ; and 8, that the plaintiffs’ alleged cause of action did not arise within it. The motion was denied at special and general terms and this appeal taken. We think it must fail.

It is enough if the cause of action arose in this State, and Crosby was, in fact, one of defendant’s directors. Code, § 432, subd. 3.

As to the cause of action, it accrued when the defendant failed to perform its contract, and by reason of its failure the plaintiffs sustained a loss. These events occurred in this State. The plaintiffs were sued in this State, and here, if anywhere, the defendants were required to defend. It is immaterial that the contract to indemnify was made in Wisconsin ; its obligation was to be discharged wherever the plaintiffs were vexed by litigation. It is true, as the appellant contends, that this obligation could only arise upon notice to the corporation of the impending suit, and that such notice was given in Wisconsin.

The plaintiffs were bound to perform this condition where they could find the defendant, and when performed it became a fact in the case, but itself gave no cause of action, nor did one then exist. Its object was to set the defendant in motion. Except for it there could have been no default. But the notice called for performance; that was regulated by the proceedings in this State where the plaintiffs were sued. The defendants’ undertaking was to defend them in that suit, and the cause of action arose when for want of a defense, judgment went against them, and it arose at the place where that judgment was recovered. Performance at no other time or place was possible. We think the summons was well served. The evidence tended to show that Crosby was a director by election, and for aught that appeared it might reasonably be held that he was one in fact. The records of the defendant so declare, and for the purposes of the motion now made by it that declaration is sufficient.

It follows that the order appealed from should be affirmed, with costs.

All concur, except Ktjgek, Ch. J., not voting.


text:
    The Cunard Steamship Co. (limited,) Appl’t, v. John R. Voorhis, et al., Dock Commissioners, Etc., Resp’ts.

      (Court of Appeals,

      Filed March 1, 1887.)
    1. JURISDICTION — Controversy submitted on statement of facts — Code Civ. Pro., § 1279, Injunction cannot be granted — Code Civ. Pro., § 1281.
    It is provided by Code Civ. Pro., § 1279, that the parties to a question in difference, which might be the subject of an action may agree upon a ease containing a statement of the facts upon which the controversy depends and present the same to the court of record, which would have jurisdiction of an action brought for the same cause. Held, that Code Civ. Pro., § 1281, forbids the granting of an injunction in such an action. If the facts in the case submitted are not sufficient to enable the court to grant any other relief an order must be made dismissing the submission.
    Appeal from a judgment of tbe superior court- of the city of New York, rendered at a general term, on a statement of facts agreed upon under Code Civ. Proc., § 1279.
    G. D. Lord, for appl’t; D. J. Dean, for resp’ts.

       Reversing 18 Jones and Spencer, 253.

   Andrews, J.

The judgment from which this appeal is taken was rendered by the general term upon an agreed statement of facts presented to the court below for the purpose of procuring the judgment of the court upon the right claimed by the Cunard Steamship Company, to maintain a shed used by the company, built upon piles in front of the bulk-head adjacent to Pier 40, North river, in the city of New York, which alleged right was denied by the defendants.

The steamship company when this proceeding was instituted was in ]3ossession of the shed and claimed the right to maintain and use the structure in connection with its business, as grantee of the Central Railroad Company of New Jersey, of rights acquired by the latter company under certain resolutions of the department of docks, and also as lessee from the dock department of the northerly side of said Pier No. 40, for a term expiring May 1, 1889.

The facts bearing upon the controversy are set forth in the submission, and it further appears that on February 24,1882, the board of the department of docks passed a resolution directing the steamship company to remove the shed within thirty days from that date, and. in default of doing so, directing the engineer of the department to proceed to remove the same. It is stated in the submission that the steamship company ask for an injunction restraining the department of docks from interfering with the company’s maintenance and use of the shed, and two questions are formulated for the decision of the court: “ 1. Has the said Cunard Steamship Company the right to maintain and use the shed during the period for which said injunction is asked for ? 2. Should the injunction asked for be granted ? ”

We are of opinion that the court below, upon the case presented, had no jurisdiction to decide the controversy, or render judgment on the merits. Section 1279 of the Code authorizes the parties to a question in difference, which might be the subject of an action, to agree upon a case containing a statement of the facts upon which the controversy depends and present the same to the court. Section 1280 assimilates the proceeding to an action. But no relief by injunction can be granted in such a proceeding. This is expressly prohibited by section 1281, and a subsequent clause in that section declares that “ If the statement of facts contained in the case is not sufficient to entitle the court to render judgment, an order must be made dismissing the submission.”

It is at least doubtful whether upon the facts stated an equitable action in the ordinary form could be maintained for an injunction. But the statute is a bar to an injunction in this proceeding, and no other relief in the nature of the case is obtainable at this stage of the controversy. There has as yet been no interference with the plaintiff’s structure. The right of the company to maintain it is denied, and the defendants threaten to to remove it. This at most can give a right to an injunction in an ordinary action, and that relief, as we have said, the court in this proceeding has no jurisdiction to grant.

It comes then to this : the parties present to the court for decision a question which if decided for the plaintiff could be followed by no relief, and if for the defendants, would not be res adjudicate/, in any subsequent litigation. The first clause in § 1279 is necessarily limited to controversies which can be followed by an effectual judgment on the submission. It is clear, we think, that the court below should have dismissed the proceeding.

The judgment is, therefore, “reversed and the proceeding dismissed for want of jurisdiction.

All concur.


text:
    Bessie J. Cummings, by guardian, Resp’t, v. Brooklyn City R. R. Co., Appl’t.

      (Court of Appeals,

      Filed February 8, 1887.)
    1. Eaxleoads — Negligence — Street ckossing.
    In an action for an injury caused by tbe alleged negligence of a railroad company, which ran trains drawn by a dummy engine through the streets of a city; it appeared that one of the defendant’s trains going north stopped at a cross street so as to obstruct both cross walks. Plaintiff, who wished to cross the street on the south cross walk, left the sidewalk as the train started, and, as the train had not quite passed when she reached it, stepped from the north flagstone to the south one, went behind the rear end of the train, and, upon emerging therefrom was struck by another train going south; Held, that stopping its cars so as to wholly obstruct the street, and thereby preventing plaintiff from seeing a train coming behind such cars, was under the circumstances sufficient to require the submission to the jury of the question of negligence of defendant in running or managing its trains.
    2. Samé — Negligence op mother op child.
    Whether or not the mother of plaintiff (a child five years of age) was guilty of negligence in permitting the child to be at large is immaterial, where the child herself was guilty of none.
    3. Same — Jury — Construction op charge as to plagman or gate.
    Where the court instructed the jury that if the defendant omitted precautions which they should have adopted in order to prevent injury to people on the highway, it was responsible, and that it was for the jury to say whether or not the defendants should have adopted other precautions than it did. Held, that it was not erroneous. That where there is no statutory duty of the railroad company to sound a whistle or ring a bell, and it does neither, a charge which leaves it for the jury to say whether under all the circumstances it should have adopted some other precautions than those observed, is not erroneous.
    4. Same — Duty op counsel as to charge.
    Where the fair import of the charge, taken as a whole, is in accordance with law, if a party complains of the possibility of the language being construed too broadly, it is his duty to call the attention of the court to the real error complained of, and not simply take a general exception.
    Appeal from a judgment of the supreme court, general term, second department, affirming a judgment of tbe Kings county circuit, in favor of plaintiff in action for damages.
    Tbe facts are sufficiently stated in tbe opinion.

      Morris & Pearsall, for appl’t., B. F. Tracy and Carpenter & Roderick, for resp’t.

       Affirming 38 Hun, 362.

   Peckham, J.

Tbe defendant operates a railroad from tbe City of Brooklyn to Fort Hamilton and runs its cars by means of a dummy engine. Its tracks are laid through Third Avenue, which runs about north and south where it crosses Thirty-Ninth Street at right angles.

There was enough proved to make it proper to submit to the jury the question of the negligence of the defendant. The injury occurred on the tenth of September, 1888, in the afternoon. Evidence was given that one train of two cars drawn by a dummy had come up on the east track on its way to Brooklyn, and had stopped at Thirty-ninth street for. a moment or two, the dummy reaching somewhat beyond the north crossing of the street, while the rear end of the rear car was still some 17 or 18 feet south of the south cross-walk ; thus totally obstructing the passage on both cross-walks at Thirty-ninth street. The plaintiff was standing on the curb-stone near the south-east corner of the avenue and the street, waiting for the train to proceed on its way to Brooklyn; and just about the time the train started she left the sidewalk, and commenced to cross the street towards the west, and arrived at where the up-train was passing at about the time the rear end of the second ear was passing orer the crossing, so that she left the north flag-stone of the cross-walk, and stepped to the south one, and passed to the rear of the car, and went towards the west or down track, and just as she step-lied towards it she was struck by the dummy, drawing a train coming from Brooklyn, and which she could not see until she stepped from behind the train going to Brooklyn. There was an ordinance of the city put in evidence which provided that “ cars stopping at a street intersection shall stop at the further walk thereof, so that the cars shall not when stopped interfere with the travel on the cross-streets.” The train from the north came down, making no noise by either bell or whistle, and was going very slowly in order to stop at the Thirty-ninth street crossing. The crossing at this place was very much used, there being perhaps no other street along the route as much occupied as that. To stop its cars so as to wholly obstruct the street, the effect of which was to prevent persons in the situation of the plaintiff from seeing any train coming from Brooklyn until the same was actually upon them, was certainly a fact proper to be submitted to a jury upon the question of whether the defendant was guilty of negligence in the running or management of its trains.

The defendant claimed that the mother of the plaintiff was guilty of negligence in permitting the child to be at large, and that, as the child was but five years of age, and non ?ui juris, this negligence of the mother was imputable to the child, and she could not, therefore, recover.' To rebut this claim of negligence, the plaintiff proved that the mother was unable to hire any servant or person to aid her in looking after the child, and • hence it was claimed that, as negligence is to be proved or disproved from all the surrounding circumstances, this evidence of inability was proper. We are not prepared to sustain the correctness of the ruling which admitted this evidence ; but it was addressed to the point of showing that the mother was not under the circumstances guilty of negligence, and such fact is entirely immaterial if the child herself was guilty of none, Ihl v. Railroad, 47 N. Y. 317. No facts were proved which showed any negligence on the part of the plaintiff. She was on a public street, and about to cross it, and waited for one train to pass the cross-walk on which she was. The street was a .crowded one, and she naturally desired to get across it as soon as she reasonably could, and thus get out of danger from the carts, wagons, and other vehicles in such street. As the car reaches her cross-walk she steps from one stone to the other, and passes to the rear, for the purpose of crossing, and is struck by the other dummy before she has even got upon the track. In all this she acted as any one might who was taking ordinary care, and who was desirous of getting across a crowded street over a somewhat dangerous crossing as soon as conveniently it could, be done.

The greatest difficulty in the plaintiff’s case lies in the charge' of the learned judge. He said to the jury that, if they found, defendant “ omitted precautions which they should have adopted in order to prevent injury to people on this highway, then they are responsible.” Again, he said that “ it was no negligence.” In this case we do not mean to go one step beyond the well-settled principles which have been adopted and frequently announced by this court. We simply say that the. fair import of the-charge, taken as a whole, is in accordance with such principles.-

The defendant excepted to the refusal of the judge to charge that the ordinance put in evidence related to railroads operated with horse-power, and not to those operated.with steam-power. We think there was no error in such refusal. The other sections-of such ordinance showed remedies applicable to railroads operated by horse-power; but they do not control the express language of the section in question, which is broad enough to cover the case of a railroad operated by steam. In addition to that,, the place for stopping cars, as provided in the ordinance, would commend itself to the good sense and judgment of every one and even if there were no such ordinance, the failure of the defendant to operate its train in accordance with such a principle might fairly be submitted to a jury upon the question of its negligence in the management and operation of its trains.

The judgment should be affirmed.

All concur, except Rapallo and Earl., JJ.," not voting.


text:
    People of the State of New York, Resp’ts v. George H. Ogle, Appl’t.
    (Court of Appeals,

      Filed March 1, 1887.)
    1. CRIMINAL TRIAL — EVIDENCE — ADMISSIBILITY ON QUESTION OE FLIGHT.
    On the trial of the defendant on an indictment for murder, proof of the-action of the officers in seeking for the prisoner after the crime was committed, was offered and received upon the question of the flight of the prisoner. Held, not error.
    2. Same — Cross-examination.
    Upon the cross-examination of the prisoner he was asked-if he had heen arrested for shooting a man at Miner’s theater, and the answer was admitted under exception, Held no error in this case, the prisoner having-proved by his father that he had been arrested and honorably acquitted upon the trial of said charge.
    3. Same — Judge’s charge — Accomplice — Corroboration.
    The court was asked by the prisoner to charge the jury in relation to the acts necessary for the corroboration of an accomplice, “ that they must be-inconsistent with the innocence of the defendant, and which exclude every hypothesis but that of guilt,” Held, the court’s refusal was correct. That the rule only requires a corroboration as to some material fact which goes to-prove the prisoner was connected with the crime.
    4. Same — Credibility of accomplice for a jury to decide.
    The credibility of a witness (who was an accomplice) as to facts not corroborated, is for the jury to decide.

      Appeal from a judgment of tbe supreme court, general term, first department, affirming a judgment of tbe court of sessions of tbe peace of the city and county of New York, convicting defendant of the crime of murder in tbe second degree.

      William F. Howe for appl’ts; McKenzie Semple, Asst. Dist. Atty, for resp’t.
   Peckham, J.

Several grounds are stated by tbe counsel for tbe prisoner for granting a new trial, but we think that not one is sufficient. It seems, on the contrary, to be quite a plain case for an affirmance of the judgment. But as the prisoner has been convicted of murder in tbe second degree and sentenced to imprisonment for life, we have not only given full attention to tbe arguments advanced’ by bis counsel, but in reference to the gravity of tbe case we will briefly state tbe reasons for tbe result arrived at by us.

1. Tbe first alleged error consists in permitting proof of tbe action of tbe officers in seeking for tbe prisoner after tbe crime was committed. It was offered and received upon the question of tbe flight of tbe prisoner. The court decided correctly in admitting tbe evidence. Tbe crime was committed on tbe 30th of November, 1882, and a brother of defendant was charged with its commission, and both were arrested that night. The prisoner was present at tbe examination of his brother but was not called as a witness. Tbe brother was subsequently indicted, but was finally discharged on bis own recognizance as there was no proof against him, and at that time none against tbe prisoner. Subsequently, in January, 1884, several persons were arrested and brought down before the district attorney, or some of bis officers, and statements were made by some of them which led the authorities to desire the arrest of the prisoner. The evidence objected to was then permitted to be given by the district attorney, showing what the officer did in order to arrest the prisoner; that he went to his house for the purpose of looking for him but did not find him there, and also to a saloon kept by one Ogle — but not the prisoner, nor was it his home — and ■did not find him', and also searched the neighborhood or vicinity without success, and also made inquiries, but without finding him until September 6,1886, when he was arrested in New York, and he then told the officer, as the officer swore, that he had been in Montana, Kansas city and Montgomery, Alabama, and that if the ■officer had not got him then, he “ was going away to-morrow •evening,” and “ I guess you never would have got me.”

All this evidence was perfectly proper. The district attorney claimed it proved the prisoner had run away, and from that .among other things he might ask the jury to infer guilt. If it did not prove flight, no harm was done. All that could be said was the people had tried to prove a fact and failed; but the evidence was so plainly admissible that no argument upon it is required.

2. The next ground taken by counsel for the prisoner to obtain a reversal rests upon the fact that the district attorney,, upon the cross-examination of the prisoner, asked him if he had been arrested for shooting a man at Miner’s theater. The evidence was admitted under the objection and exception of the prisoner’s counsel. Whatever the ruling of the court might otherwise have been, it is clear no right of the prisoner was illegally invaded under the facts of this case, for his counsel had already proved the same fact in the examination of the father of the prisoner, who testified his son had been arrested and honorably acquitted upon the trial of a charge for shooting a man at Miner’s theater, showing conclusively the two examinations referred to the same transaction.-

3. The counsel asked the court to charge the jury in relation to the acts necessary for the corroboration- of an accomplice, “ that they must be inconsistent with the innocence of the defendant and which exclude every hypothesis but that of guilt.” The court refused and counsel excepted. In this the court was clearly right. There is not and never was any such rule as to corroboration. The whole law of evidence will be searched in vain for it. The authorities cited by prisoner’s counsel maintain no such rule. . The rule is stated in one of them — People v. Plath, 100 N. Y., 593;- — and is wholly different from the request herein made. It only requires a corroboration as to some material fact which goes to prove the prissouer was connected with the crime. Another answer is that the witnesses in regard to whom the request was made were not accomplices in any sense of the word. Neither was ever charged with any crime whatever. The most that could be alleged was that one of them, after the crime was committed, had the knife placed in his hand, and he threw it under a chair in the ball-room, to which, be immediately returned after seeing-the prisoner plunge it in the deceased. There is no evidence whatever that either had the least thought that the murder was. to be committed, or in any way aided or abetted in its commission. Even if the rule as to the evidence of an accomplice had been erroneously stated by the court, it was, therefore, wholly immaterial in this case.

4. The court was also asked to charge the jury that it would be justified in requiring every fact sworn to by the witnesses-Rogers and Hopper to be corroborated to its satisfaction, and if not so corroborated, to reject such fact as not proved. The court left the question of the credibility of the witnesses under-proper instructions to the jury. The charge was an eminently fair one, and all the legal rights of the prisoner were therein carefully and fully guarded.

The record reveals no error and the judgment must be affirmed.

All concur.


author: Finch, J.

text:
    The People of the State of New York, Resp’ts, v. James Meegan, Appl’t.

      (Court of Appeals,

      Filed March 1, 1887.)
    Criminal law — Btjbglaby — Charge to the jury — Peral Code, § 505.
    Upon a trial the proof, without contradiction, established all the elements of burglary in the first degree. Held, that it was not error to refuse to charge the jury that they might convict the prisoner of a misdemeanor under Penal Code, § 505.
    Appeal from the Supreme Court, General Term, Second Department, affirming the judgment of the Court of Sessions of Queens County, convicting the appellant of burglary in the first degree.

      James W. Covert, for appl’t.; John Fleming, for resp’ts.
   Finch, J.

The prisoner was indicted for burglary in the first degree. The evidence showed that, with two or three confederates, he broke into an inhabited dwelling-house, and held, or aided in holding, one of the inmates while one of his companions attempted to commit a rape upon a female therein residing. The defendant himself testified, admitting his presence in the house, and practically denying nothing. The trial court was asked to charge the jury that they might convict the prisoner of a misdemeanor under section 505 of the Penal Code. The request was refused and an exception was taken. The jury found the defendant guilty of burglary in the first degree. The learned trial judge read to the jury the definitions of burglary in each of its three degrees, after having told them that if they doubted as to the greater offense they might convict as to the lesser. He called their attention, then, to the provisions of section 505, adding: “ I have now called your attention to all the provisions of the statute which relate to the offense charged in the indictment, and to the jiarticular degrees of that offense.” It would seem from his language that he treated section 505 as a lesser degree of the offense charged, and gave to the prisoner the benefit of the doctrine which his counsel invoked. But if his subsequent refusal to charge imports the contrary, he committed no error. Nothing in the facts proved warranted a conviction for the misdemeanor. The proof, without contradiction, established all of the elements of burglary in the first degree. There was no room for any possible conclusion upon the evidence that any opening to the house was unclosed, or that the entrance was effected without a “ breaking.” The defendant makes no such pretense. He only says that he was in such a state of intoxication that he did not know how entrance to the house was effected. The “ breaking,” which constitutes the essential element of the crime of burglary, stood, therefore, in the case an uncontradicted fact, and since, under section 505, the lesser offense of a misdemeanor could only exist where the entry into the building was “ under circumstances or in a manner not amounting to a burglary,” the trial court was certainly authorized to decline a charge to the jury that they might convict of a misdemeanor. That would have been to tell them that they might disregard clear and definite testimony not only unimpeached but entirely without contradiction. It may be added also that no modification of the indictment by striking out the characteristics of burglary in any or all of its degrees would have left an adequate description of the misdemeanor. That offense involves an intent to commit a felony or a larceny, or malicious mischief accompanying the entry. The only allegation of intent in the indictment is “to commit some crime.” Code Crim. Proc., §§ 444, 445; Dedieu v. People, 22 N. Y. 178. It is clear, therefore, that the exception was unfounded.

No other questions require discussion.

The judgment should be affirmed.

All concur.


text:
    Matter of the Application of the Water Commissioners of Amsterdam, Appl’ts, to acquire certain rights in Lands of John C. Chalmers and Gertrude Chalmers, Resp’ts.

      (Court of Appeals,

      Filed February 11, 1887.)
    Costs.
    The words “with costs ” in an order of reversal or affirmance in the court of appeals, in a case 'where the allowance of costs is discretionary, mean costs in that court only.

      M. L. Stover, for appl’ts; John M. Carroll, for resp’ts.

       Reversing 36 Hun, 534.

   Per Curiam.

In the case of Sisters of Charity v. Kelly, 68 N. Y., 628, we construed the words “ with costs,” in an order of reversal or affirmance in this court, in a case where the allowance of costs is discretionary, as meaning costs in this court only. The case of Murtha v. Curley, 92 N. Y., 359, was one where the prevailing party was entitled to costs as of course, and the decision was placed upon that ground. The rule we established in Sisters of Charity v. Kelly, has been followed since the decision of that case, unless by inadvertance. The reversal on the original appeal in this ease .was “ with costs,” and, as construed, entitled the appellant to costs in this court only. If tlie appellant deemed himself aggrieved, his remedy was to apply to this court for an amendment of the order. The order of the general and special terms should therefore be reversed, and the taxation by the clerk affirmed. But, as the appellant may have been misled by a remark in the opinion in Murtha v. Curley, as published in 8 Civ. Proc. R. 265, but intentionally omitted in the opinion as published in the regular series, we think the reversal should be without costs.

All concur.


text:
    William H. Nearpass, et al., adm’rs, Appl’t, v. Winthrop W. Gilman, Resp’t.

      (Court of Appeals,

      Filed March 1, 1887.)
    1. Evidence — Admissibility of — Code Civ. PRO., § 829.
    An action was brought to recover on a promissory note claimed to have been executed by defendant through his general agent. The latter was called as a witness on behalf of the defendant to prove payment, and his evidence, which involved personal transactions and. communications with plaintiff’s intestate was admitted. Held, no error. That Code Civ. Pro., § 829, did not apply. ■
    2. Same — Endorser — When a competent witness under Code Civ. Pro., § 829.
    The drawee and endorser of said note, who was not a party to the action, was offered as a witness in behalf of the maker of the note. Held that the fact of his endorsement did not even make him presumptively liable on the note. That he was a competent witness unless the plaintiffs showed that his liability as indorser had arisen or was an open question.
    Appeal from a judgment of the supreme court, general term, second department, affirming a judgment of tlie special term, in favor of defendant, entered upon the report of a referee.

      John W. Lyon, for appl’t; Lewis E. Carr, for resp’t.
   Finch, J.

Two questions of evidence are presented by this appeal. The action was brought to recover the amount claimed to be due upon two checks and two notes claimed to have been executed by the defendant through his general agent, Alfred Gilman. The latter was called as a witness on behalf of the defendant to prove payment, and his evidence, which involved personal transactions and communications with the plaintiff’s intestate, was objected to for that reason, but admitted under an exception by the defendant. The witness was not a party to the action and his testimony prohibited by section 829 of the Code for that reason, but it is urged that he comes under its description of “ a person interested in the event.”

It is argued that if the defense failed tthe agent would be liable to his principal for a misappropriation of funds or negligence in permitting the evidence of payment. Assuming that a possible liability of the witness upon one or the other of these grounds might exist, it is obvious that it would find its origin in facts, gaining, no effect or potency from the event of the action or the judgment for the plaintiffs in which it might terminate.

That judgment could not bind him directly by its own force, nor indirectly as evidence against him. It might prove to be the occasion or cause of a suit against him by his principal, but in defending that suit he would, be utterly unaffected by the judgment against his principal and entirely at liberty to show a payment in fact made by him with his principal’s funds and explain the failure to take up the notes and checks. The judgment against his principal would not hamper or affect him in the least. The correct rule is stated in Hobart v. Hobart, 62 N. Y., 80, that the disqualifying interest must be not merely in the question involved, but in the event of the particular action pending; such that the witnesses will either gain or lose by the direct legal effect and operation of the judgment, or that the record will be legal evidence for or against him in some other action. A fair example of such a case is that of a surety on an executor’s bond who is bound by the surrogate’s decree upon the accounting. Miller v. Montgomery, 78 N. Y., 283. But Gil-man was not bound directly by the judgment, nor indirectly by it as a matter of evidence. He was at liberty to dispute as against himself the facts upon which it rested. His possible interest in the question involved did not make him interested in the event of the action.

One of the notes sued was drawn to the order of Edward Freedman, and was indorsed by him. He was not a party to the action. He was offered as a witness in behalf of the maker of the note. Assuming that plaintiff’s intestate derived title to the note through or from the indorser, although if merely an accommodation indorser, as is alleged, the assumption might perhaps be challenged, yet the witness was not called or examined in behalf of the party succeeding to his title or interest but against that party. It is claimed, however, that Freedman was exam-ed in his own behalf and had an interest in the event of the action by reason of his position as indorser. But the fact of his. indorsement merely did not make him liable on the note and we think not even presumptively so. Until the note was duly presented and protested for non-payment and due notice given, the indorser was not liable at all. At the date of the trial the note was long past due and Freedman charged as indorser or discharged by the omission of protest and notice. He says he received no notice. Presumptively, therefore, none was sent.. If the plaintiff had shown that his liability as indorser had arisen, or possibly even that a claim of protest and notice in good faith existed so as to leave the question of liability open, it might be urged that he had an interest in proving payment, but until something of tbe kind appeared be stood not at all in tbe attitude of one interested in tbe event of tbe action and examined in bis own bebalf. The general rule excludes no one on account of interest. Whoever would close the mouth of a witness must place him within tbe boundaries of tbe exception. This was not done. The court could not pronounce him disqualified upon tbe facts before it, for nothing appeared raising even a presumption of an interest in bebalf of which bis testimony could operate.

No other questions need to be considered. The judgment, should be affirmed.

All concur.


text:
    Manchester Paper Co., Appl’t, v. Moore, Resp’t.

      (Court of Appeals,

      Filed March 1, 1887.)
    1. Accounts stated — what are — Can be opened only on proof of FRAUD OR MISTAKE.
    Accounts rendered monthly for four years and after examination retained without objection constitute accounts stated and can only be opened and investigated upon proof of fraud or mistake.
    2. Evidence — Parod Evidence admissible to explain ambiguities in A written contract.
    Ambiguous words in a written contract may be explained by previous conversations between tbe parties tending to show in what sense they were understood.
    Appeal from a judgment of the superior court of the city of New York at a general term, affirming a judgment entered, on report of referee dismissing the complaint upon, the merits.

      Henry L. Burnett, for appl’t; M. W. Divine, for resp’t.
   Finch, J.

The accounts rendered monthly during four years by Jessup and Moore to the plaintiff, and after examination retained without objection, constituted accounts stated and could only be opened and investigated upon proof of fraud or mistake. The plaintiff evidently recognized this feature of the situation, for the complaint expressly charges fraud or mistake in the rendition of the accounts, and the denial of the defendant put that issue into the case. The items assailed as thus fraudulent or mistaken were the chemicals furnished at the prices charged, and the computations of interest. The contract between the parties was embodied in a letter written by the defendant referring to previous conversations and purporting to frame their meaning into the terms of a written agreement. Among those terms it was specified that the supplies for the plaintiff’s paper mill were to be furnished by the defendants at the “ruling market rates.” The evidence discloses that the market rates for chemicals bought of importers was a fraction below the market rates for the same goods as sold by jobbers among the other supplies necessary to the manufacture of paper.

The fact thus disclosed raised a latent ambiguity in the language of the written contract, and opened the inquiry which of the two market rates was meant or intended by the terms of the contract. The previous conversations of the parties tending to show in what sense the subsequent words as. written were understood, and bearing upon the issue of fraud between the parties only to be investigated by a complete survey of all that occurred relating to the transaction were admissible in evidence. When these conversations were first offered the defendant objected upon the ground that the terms of the writing could not be varied or contradicted by parol proof. The court expressly declined to receive the evidence for any such purpose. The defendant conceded by the form of his objection, in which he insisted that the question asked “ should be confined to the explanation of some phrase in the written contract ” that so much of the conversation as tended to such an explanation was admissible. The evidence thereafter given did not transgress this limitation. It exposed the situation of the parties, the surrounding circumstances, the characteristics of the business conducted by each, their relative needs and modes of action, thus enabling the court to read the instrument from the standpoint of the parties themselves. That conversation developed that by ruling market rates the parties meant and intended the jobbers’ rates as established by those who, like the defendants, were engaged in furnishing paper makers’ supplies generally and of all kinds, and not the importers’ rates for chemicals alone, and showed, further, that the defendants in charging jobbers’ rates were guilty of no fraud but conforming to an understood and expressed intention. We think, therefore, that no error was committed in admitting the evidence objected to, nor in holding that the rates charged were in conformity to the terms of the contract, and not fraudulent or mistaken. In Dent v. N. A. Steamship Co., 49 N. Y., 390, the offer rejected was to show the prior parol agreement of the parties. The effort was to substitute the verbal language for the written language of the contract, which of course was, inadmissible. Facts existing, it was said, might be shown in aid of interpreting the written words, but not different language as constituting the agreement. In the present case the accounts stated conclusively interpreted the instrument, unless they were fraudulent or mistaken, and upon that issue all that was said and done leading up to the written contract and tending to establish the absence of fraud in the charges made, was certainly admissible.

The same thing is true as to the manner of computing interest. It is proved that the defendants showed and carefully explained to tbe superintendent of plaintiff their interest computations with their own mill and their mode of charging the same as an illustration of the manner in which they proposed to conduct the business, to which the superintendent assented. Three computations appeared upon fifty-four different accounts running through the entire business relation of the parties, and the finding of the referee that such accounts were neither fraudulent nor .mistaken leaves them binding upon the parties. The judgment should be affirmed, with costs.

All concur.