text:
    Frank W. Roberts, Pl’ff, v. The Summit Park Company, Def't.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    1. Statute of frauds—Contract.
    It is only contracts which' either by express provision are not to be, or by necessary implication are not intended to be performed within a year, that are required by the statute to be in writing.
    .U. Same.
    The parties hereto entered into a written agreement by which plaintiff was given the exclusive agency until a date fifteen months from that date to sell certain specified lands of defendant, the contract specifying the prices to be paid for the lots, plaintiff’s commissions and the minimum cash and monthly payments to be required of the purchasers. Held,' that it was the evident intent and purpose of the parties that it should be performed in as short a time as possible, and that there was nothing in the terms of the contract or the nature of the case to prevent it from being performed in less than one year; and hence, that exclusion of evidence of an oral modification of the contract on the ground that the contract was one required by the statute to be in writing was erroneous.
    Motion by the plaintiff for a new trial on case and exceptions ordered to be heard in the first instance at general term, after non-,suit at the Erie circuit.

      T. C. Becker, for the motion; A. Moot, opposed.
   Dwight, P. J.

The action was to recover commissions claimed by plaintiff' under an alleged contract of the defendant constituting him its agent for the sale of lots; and also damages for an alleged violation and wrongful rescission of the contract by thedefend,ant. There was a contract in writingbetween the parties under which the plaintiff made some sales, but in all of these eases he received his commissions from the moneys paid him on sales, and he makes no claim for any commissions earned or damages sustained by him under the contract as it was executed in writing. His claim made in this action is based wholly upon an alleged oral modification of that contract which was never reduced to writing.

On the trial most of the evidence offered by the plaintiff to establish such modification was excluded by the court on the objection of the defendant that the contract was, by its terms, not to be performed within one year from its execution, and was therefore within the purview of the statute of frauds and void so far as it was not in writing. That evidence being excluded, the plaintiff failed to establish a cause of action and his complaint was accordingly dismissed. The exception to this ruling presents the only question which requires to be considered on this appeal.

The ruling was correct if the ground of the objection was ten.•able, and it remains only to examine the contract and.ascertain whether it was in fact one “ that by its terms was not to be performed within one year from the making thereof.” 2 R. S., 135, § 2. It was executed on the 14th day of October, 1891. Its first provision was in the following terms: “ The party of the first part hereby gives to the party of the second part the exclusive agency from the date hereof until January 1, .1893, for the sale of blocks •one to fifteen inclusive of the lands of the party of the first part, .known as Summit Park, etc.”

A further provision is as follows: “The party of the second part during the term of this contract agrees to maintain an office ¡in the city of Buffalo for the transaction -of business connected with the performance of this contract, to use diligence and his best efforts in effecting sales of said lands; * * * to attend to the collection of all moneys falling due upon the contracts of ¡sale for said lots until the purchase price of the lots so sold shall have been paid, or until the termination or rescission of this contract * * * .” It was further provided'that “Such lots .shall ba sold under written,contract or deed, * * * in which •contracts, * * * the terms of payment for said lots shall not be less than $50 down per lot for lots on Main street and Summit Park avenue, and monthly payments thereon of not less than $10, with interest, and not less than $25 down per lot on all other lots, and monthly payments of not less than $5, with interest.” 'The contract then proceeds to fix the prices per front foot which the lots of various classes shall be made to net to the Summit Park Company, and to fix the commission or compensation of the agent; and, finally, it defines certain contingencies in which the contract may be cancelled, rescinded or terminated without .full performance before the expiration of the term named.

Can it be said of this contract that it was, by its terms, not to be performed within one year from its execution ? On the contrary, we think it was the evident intent and purpose of the parties that it shonld be performed in as short a time as possible, and that there was nothing iri the terms of the contract, any more than in the nature of the case, to prevept its being performed in less than one year. The limitation of the number of lots to be sold in a given time was to a minimum number, and of course it was not merely permitted, but desired, that the number should be increased as much as possible. The same is true of the terms of payment when the sales were on contract, and the agent was •quite at liberty to require a larger payment down, or a larger monthly payment, or both, and thus shorten the time of collection.

In short it was very plain that this contract was not to continue in force after all the lots should be sold and the money collected; that the time limited by the contract for the accomplishment of this work was a maximum, and that so far as the contract was ■concerned it might be done in any time less than that. The amount of work to be done was strictly limited, viz., the sale of so many lots; the time within which it was to be done was limited only by a maximum and it might be done in as much shorter time as the diligence, the best efforts and the good fortune of the ^plaintiff should prove to be sufficient.

The conclusion that such a contract is not within the provision-of the statute of frauds which we have been considering is, we-believe, supported by all the authorities. It is only contracts which either by express provision are not to be, or by necessary implication are not intended to be performed within a year, that are required by the statute to be in writing. In-other words, the contract must be one which by its terms shows-that the parties intended that it should not be completed within-the year. Boydell v. Drummond, 11 East, 142; Doyle v. Dixon, 97 Mass., 208; Drake v. Seaman. 97 N. Y., 230 ; Kellogg v. Clark, 33 Hun, 393; Day v. N. Y. C. R. R. Co., 22 id., 412; Bartlett v. Wheeler, 44 Barb., 162.

It is very clear that no such intention was entertained by the parties to the contract in this case; but on the contrary, that while by the terms of this contract performance might be extended over a period of nearly fifteen months, yet that complete-performance within any shorter period was consistent with all the provisions of the contract. Such being the case,- we are not required to consider the question, upon which there is some conflict of authority, of the effect of the provisions of this contract for a termination or rescission of the contract by the act or at the option of one of the parties.

The objection made on the argument here, that the alleged modification of the contract, relied upon by the plaintiff, was without consideration seems not to be well taken, because that modification, so far as disclosed by the evidence which was received, or which was offered by the plaintiff, -was calculated to-promote the sale of lots, and was, therefore, for the common benefit of both parties to the contract.

Wé conclude that the plaintiff’s exceptions to the exclusion of the evidence referred to, and to the granting of a non-suit, must - be allowed and his motion for a new trial granted.

Plaintiff’s motion for a new trial granted, with costs to abide the-event.

Haight, J., concurs; Lewis, J., not sitting.


source: Caselaw Access Project

author: Dwight, P. J.

license: Public Domain

text:
    Mary Menneiley, Pl’ff, v. The Employers’ Liability Assurance Corporation, Limited, Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    Insurance (accident)—Construction oe policy.
    A policy of accident insurance provided that it did not insure against death or disablement “arising from anything accidentally taken, adminis tered or inhaled, contact of poisonous substances, inhaling gas, or any surgical operation, etc.” The insured died from accidentally inhaling illuminating gas, which accidentally escaped into the room where he was-sleeping in an hotel. Held, that the case came within the first portion of" the exception, “ anything accidentally inhaled,” and that defendant, therefore, was not liable.
    Motion by the plaintiff for judgment on a verdict directed by the court at the Monroe circuit (January, 1893,) subject to the-opinion of the general term on a case to be made by the plaintiff,.

      Wm. N. Cogswell, for pl’ff; W. A. Sutherland, for def’t.
   Dwight, P. J.

The action was on a policy or contract of insurance payable to the plaintiff, which insured her husband, Samuel D. W. Menneiley, “ against personal injuries caused by .accident within the meaning of this policy.” The insured died from accidentally inhaling illuminating gas, which accidentally escaped into the room where he was sleeping in an hotel. The only question in the case is whether that accident was “ within the meaning of this policy.”

The policy contained the following, among other “ agreements and conditions ” upon which it was issued: “ This policy does not insure * * * against death or disablement arising from anything accidentally taken, administered or inhaled, contact of poisonous substances, inhaling gas, or any surgical operation, etc,”

It has been held by the court of last resort in this state that by the words “inhaling gas,” in a similar exception contained in the contract of another insurer against accidents, “ the company can only be understood to mean a voluntary or intelligent act by the insured, and not an involuntary and unconscious act." Paul v. Travelers' Ins. Co., 112 N. Y., 472; 21 St. Rep., 624. So that if the exception of death or disablement by “ inhaling gas ” was the one relied upon by the defendant here, the authority cited would be conclusive against its contention. But such is not the case. The exception here relied upon, which was not in the policy in the case of Paul, expressly describes an act not voluntary and intelligent, but, on the contrary, accidental. The death or disablement excepted is one “ arising from anything accidentally inhaled. ” And here was the death of the insured arising from illuminating gas accidentally inhaled.

It seems difficult to elaborate or prolong an argument upon this statement. Here is no room for interpretation ; the words employed interpret themselves, and unquestionably apply to the facts presented by the stipulation of the parties. The exception here rélied upon, if expressly framed to avoid the construction put upon that in the case of Paid, supra, could not more successfully have accomplished the purpose. It would be a contradiction in terms to apply the words “accidentally inhaled” to the voluntary and intelligent act of inhaling an anaesthetic in aid of a surgical operation, which the court say was apparently the reference in that case.

The facts in this case bring it, unavoidably, within the exception and, consequently, take it out of the provision of the policy in suit.

The motion for judgment upon the verdict must be denied, with costs, and, upon the facts agreed upon, judgment ordered for the defendant dismissing the complaint.

Lewis, Maoombeb, and Haight, JJ., concur.


text:
    Betsy A. Vaughn, Resp’t, v. The Buffalo, Rochester & Pittsburg Railway Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    Railroad—Failure to restore highway—Pleading.
    The complaint in an action for damages resulting from an injury caused by a defect in a highway which defendant’s predecessor failed to restore when building the road need not allege notice to the defendant of the defect. The statutory duty of restoring the highway is a continuing one, and its neglect a continuing violation of tjie law, whether by the first, owner of the railroad or its successor in title.
    Appeal by the defendant from an interlocutory judgment, entered in Cattaraugus county on the decision of the court at special term, overruling the defendant’s demurrer to the plaintiff’s-complaint.

      H. G. Danforth, for app’lt; Laidlaw & McNair, for resp’t.
   Dwight, P. J.

The action was to recover damages for a bodily-injury resulting to the plaintiff from a defect in a public highway in the town of Machias, in Cattaraugus county, upon which she was driving. The facts upon which the liability of the defendant, was charged were alleged in substance as follows: That the railroad owned and occupied by the defendant at the time of the accident was built in the year 1874 by a corporation known as the Rochester & State Line Railroad Company; that in the construction of its line through the town of Machias its track was laid along and upon the highway before mentioned in such manner as to occupy its whole width, and exclude the public entirely therefrom for a certain distance, for which distance the railroad-company constructed a new highway adjacent to its line; that, said highway was not then, and never was before the time of the accident in question, restored to its former state, or to such state as not unnecessarily to have impaired its usefulness; but, on the contrary, at the point where the accident happened to the plaintiff it was left in an unsafe, and dangerous condition, and was a public nuisance, and so remained down to the time of the accident.

The complaint further alleges that the defendant became before the date of the accident in question the successor, in title and possession, of the said Rochester & State Line R. R. Company,. “ through and by various reorganizations ” of that company, and was successor to all its right and title to said railroad and its appurtenances.”

The contention of .counsel in support of the demurrer is that without an allegation of notice of the defect in the highway as-restored or constructed by its predecessor in title, the complaint fails to state a cause of action against the defendant, and they rely upon the cases of Conhocton Stone Road v. Buffalo, N. Y. & Lake Erie R. R. Co., 51 N. Y., 573, and Ahern v. Steele, 115 id., 203 ; 26 St. Rep., 295, as authority for that pronosition.

We find both of the cases cited clearly distinguished from the case at bar, and neither of them authority for the application of the rule in respect to notice to this case. The former was an action to recover damages for an inj ury to the plaintiff's road bed, caused by the same being washed and flooded by the waters of a stream which the complaint alleged was dammed by an embankment and bridge of the defendant. The evidence showed that the structures complained of were erected many years before, by the predecessor in title of the defendant, and there was no evidence that the defendant had notice of any defect of construction which was liable to cause such an injury as that complained of. It was held in that case that such notice was necessary to give a cause of action against the successor in title who merely permitted the nuisance to exist.

The distinction between that case and the present is manifest. The thing complained of in that case was a private nuisance erected on the property of one corporation and affecting only the property of another. The wrong in that case was in the plan of construction of the bridge, and the damage resulted only in case of a flood in the stream which, it seems, had not before occurred since the defendant obtained the title. In this case, on the contrary, the nuisance was a public one, rendering dangerous a publie highway of the town, and its existence was directly due to a violation of a public statute of the state by a failure to restore the highway to its former condition of usefulness.

This was primarily the duty of the defendant’s predecessor in title; but it was a continuing duty and its neglect was a continuing violation of the law, and that, whether by the first owner of the railroad or its successor in title. The piece of road in question was one of the structures of the railroad, not for the purposes of its own traffic but for a purpose more directly affecting the public. It was rendered necessary by the appropriation of a portion of a public highway for the uses of the railroad, and it was constructed in pretended compliance with the statutory requirement that the highway should be restored as nearly as possible to its former condition of usefulness. This requirement continued in force until fully performed, and bound each successive owner of the railroad as fully as the original owner.

■ These considerations, of course, apply only to defects in the original construction of the substituted highway, and. such was the defect described in the complaint.

The case of Ahern v. Steele, supra, 115 N. Y., 203 ; 26 St. Rep., 295, is even less apparently in point than the one so far considered. It was a case in which it was sought to charge an owner who was never in possession, with liability for a nuisance erected by a previous owner and maintained or continued by an occupant, without proof or presumption of notice of its existence to the defendant. Yet even the judgment in that case, acquitting the defendant of liability, was made by a divided court, three of the judges uniting in a very earnest dissent expressed in an opinion by Danforth, J.

We find no authority in either of the cases referred to for the contention that notice was required, to the defendant in this case, of a failure to perform a statutory duty on its own part.

The question of contributory negligence is so purely one of fact that it would be an extraordinary case in which it could be" held that the plaintiff did, as matter of law, make out that defense by the allegations of liis complaint. This case seems to us not to present that extraordinary feature.

We think the demurrer was properly overruled and the interlocutory judgment appealed from should be affirmed.

Interlocutory judgment appealed from affirmed, with costs, but with a continuance of the leave to withdraw the demurrer and answer over on the payment of costs of the demurrer and of this appeal.

Lewis, Haight and Bradley, JJ., concur.


author: Per Curiam.

text:
    James Cunningham, Resp’t, v. Andrew T. Doyle, App’lt.

      (New York Common Pleas, General Term,

      Filed October 2, 1893.)

    1. Mechanic's lien—Form op action to establish.
    An action to establish a mechanic’s lien is properly brought in the form of an action to foreclose it against the property, although a bond in discharge of the lien has been filed.
    3. Same—Verification.
    A verification which omits the name of the affiant in the body thereof is sufficient, unless the affiant acts in some special capacity.
    3. .Same.
    It is no objection that the verification is in the alternative; it may properly follow the words of the statute.
    4. Value of work.
    The agreement between the parties may properly be considered as evidence of the value of the work.
    Appeal from judgment entered upon the report of a referee.
    Action to foreclose mechanic’s lien.

      Charles J. Hardy, for app’lt; Palmer, Boothby & Warren (L. E. Warren, of counsel), for resp’t.
   Per Curiam.

This action was properly brought, both as against this defendant and for the purpose of establishing the lien, in form as in an action to foreclose it against the property upon which the work in question was done, although a bond in discharge of the lien had been filed. Kruger v. Braender, 51 St. Rep., 906; 23 N. Y. Supp., 324.

It is contended that the notice of lien, as filed, was defective in that the name of the affiant was omitted from the body of the verification thereto ; the effect of such omission has been considered by the court of appeals in the case of People v. Sutherland, 81 N. Y., 1, where it was held that a verification in such form is sufficient. The only exception contained in this ruling relates to a case where the affiant acts in some special capacity, and in such case, the court say, It is manifest that the name of the deponent must be stated, to apply to him by that name the statement of his capacity.” Here, however, no statement of special capacity was required; the affidavit showed to the notary that a person’s conscience had been burdened with an oath to the effect that he was “one of the claimants, etc.,” and that the “ statements were true, etc.” As to the question of the notary’s acquaintance with “ 0. Smith,” it is sufficient to point out that the statute calls for a verification and not an acknowledgment.

There is no force in the objection that the affidavit is in the alternative. That such a verification may follow the words of the ■statute has been held by this court in Staubsandt v. Lennon, 51 St. Rep., 754. We consider that the notice of lien complied in form with the statutory requirements.

We have examined the exceptions to the findings and rulings of the referee, and conclude that no error requiring a reversal has been committed. The referee was at liberty to consider the agreement between the parties as evidence of the value of the work. Ludlow v. Dole, 62 N. Y., 617. The evidence supports the finding ■that the refusal of the defendant to make payments subsequent to the first instalment justified the contractors in abandoning further .performance.

Judgment affirmed, with costs.

Bookstaver and Pryor, JJ., concur.


author: Bischoff, J.

text:
    William Struthers, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.

      (New York Common Pleas, General Term,

      Filed October 2, 1893.)

    1. Railroad—Elevated—Findings.
    Where it does not appear that the referee assumed the easements appropriated by defendants to be of any value whatever independently of the land, and it does appear that the award made exclusively represents the diminution in the market value of the land itself after it was deprived of its appurtenant easements, any error in refusing to find that the easements considered apart from the land have only a nominal value should be disregarded.
    3. Same—Benefits.
    Where elevated railroad companies contend that, notwithstanding the injury caused by the road, its presence has increased the fee and rental value of the premises abutting on it above what such values would have been without the railroad, and that after due allowance for the injury there remains an excess of benefits although the values remain diminished, the burden is upon them to establish the pecuniary extent to which such benefits have advantageously influenced the val
    3. Same.
    The question whether plaintiffs premises were prevented from rising in fee and rental values equally with other property in the same locality, and not abutting on the railroad, by the latter's presence and operation, is one of fact, and if the evidence is reasonably open to conflicting inferences the finding of the trial court should not be disturbed.
    Appeal by defendants from a judgment for plaintiff which was entered on the report Of a referee.
    Action to restrain the maintenance and operation of defendants’ elevated railroad in the street in front of plaintiff’s premises and to recover past damages sustained from the unlawful appropriation of easements appurtenant to said premises by means of the construction and operation of the railroad.

      J. Aspinwall Hodge, Jr., for resp’t; R. L. Maynard, for app’lts.
   Bischoff, J.

The easements appurtenant to land abutting upon defendants’ elevated railroad being without more than nominal value, abstractly considered, compensation for injury to the fee caused by the presence and operation of the railroad must be measured by the effect which the taking 'of the easements has produced upon the land itself; or in other words, the proper measure of compensation is the difference in the market value of the land with, and without the easements. Newman v. Met. El. R. Co., 118 N. Y., 618; 30 St. Rep., 36; Bohm et al. v. Met. E. Co. et al., 129 N. Y., 576 ; 42 St. Rep., 247. A refusal, therefore, to find that the easements appropriated by defendants, considered separate and apart from the land, have a nominal value only, presents error which requires reversal in the absence of every intimation in the decision or report from which the appellate court may conclude that the award was for consequential damages only and that it was not in whole or in part predicated of a supposed substantial value of the easements. Bookman v. N. Y. Elev. R. R. Co., 137 N. Y., 302; 50 St. Rep., 703; Sutro v. Manhattan R’way Co., 137 N. Y., 592; 50 St. Rep., 701. If, however, it affirmatively appears that, notwithstanding the refusal to find as requested, the proper measure of damages was applied and that in determining the amount of damages the court or referee excluded from consideration any value of the easements apart from the land, the error of the refusal is rendered harmless and of no avail. Bischoff v. N. Y. El. R. R. Co., 52 St. Rep., 374; Sixth Ave. R. R. Co. v. Met. El. R. Co., 53 id., 181; Steubing v. N. Y. El. R. R. Co., id., 187. ¡Now, turning to the report in the case at bar, it does not appear that the referee has assumed the easements appropriated by defendants to be of any value whatever independently of the land; and referring to the first and second conclusions of law, it does appear that the award made exclusively represents the diminution in the market value of the land itself after it was deprived in part of its appurtenant easements by the advent'and operation of the railroad. Upon the authority, therefore, of the Bischoff, Sixth.Ave. R. R. Co. and Steubing cases, above referred to, any error in refusing to find that the easements considered apart from the land have only a nominal value should be disregarded.

Appellants further assail the judgmem on the ground that the referee erroneously excluded the elements of special and general benefits from his consideration of the amount of damages to be awarded for injury to the fee value of plaintiff’s premises. Newman and Bohm cases, supra. So far as any benefits which are special and peculiar to the premises, and arise from the presence of defendants’ railroad, are concerned, the referee, upon a conflict of evidence and upon conflicting inferences to be legitimately drawn from the evidence, not only refused to find that such existed, but explicitly found that there were none, and except in the case of a palpable miscarriage of justice, which the evidence in the present case does not authorize us to assume, the referee’s determination of the facts should be accepted as conclusive. Betjeman v. N. Y. El. R. R. Co., 20 N. Y. Suppl., 628; 48 St. Rep., 721; Cohn v. Met. El. R. Co., 136 N. Y., 646 ; 49 St. Rep., 339; Adler v. Met. El. R. Co., 52 id., 160.

With reference to general benefits concomitant with the injury-caused by the advent and operation of defendants’ railroad, it is. to be observed that the evidence sufficiently demonstrates that plaintiff’s premises have suffered a diminution in both fee and rental value from the presence of the railroad, and justified the awards made both for past and fee damages. General benefits, if there be any, would naturally manifest their presence and prove their pecuniary worth either by preventing a decline of fee and: rental values or by enhancing them. In either case, therefore,, a consideration of the evidence adduced to show the course of values of the premises abutting on the railroad and others in the-same locality necessarily included concomitant general benefits. If, however, defendants are to be permitted successfully to contend that notwithstanding any injury caused by the railroad its presence "has increased the fee and rental value of premises abutting upon it above what such values would have been without the railroad, and that after due allowance for the injury there yet remains an excess of benefits although the values remain diminished, then they must assume the burden of proving the pecuniary extent to which such benefits have advantageously influenced the values. Without such proof any finding that the benefits exceed the injury would be wholly arbitrary, and if attempted observance of this rule implies an invasion of the realms of speculation, increases the perplexity of arriving at a precise solution of the question of damages which is presented in this class of actions, and renders competent evidence difficult of attainment, defendants yet have a means of escape if they will avail themselves of the exercise of their right of eminent domain in the manner for such cases intended and provided and permitting of a result to be reached untrammeled by technical rules of evidence.

It was conceded by defendants that their railroad was first operated on July 1, 1880. The testimony of Curtiss, plaintiff’s expert, appears to be intrinsically of greater worth than that of defendants’ expert, and therefrom it appears that, in 1873, before the panic, the ratio of rental to fee value was ten per cent and that the fee value of plaintiff’s premises was then $13,500. From this the deduction is that the rental value at the same time was-$1,350. It further appears from the same testimony that property generally, except such as abutted upon defendants’ railroad, had more than recovered from the effects of the panic and that both their fee and rental values had gone above the values of 1873, but that the ratio of rental to fee value had declined to nine per cent. Had, therefore, plaintiff’s premises shared in the general rise their fee value at the time of the trial would have been not less than $15,000, accepting their rental value at the same time at what it was in 1873. Curtiss, however, fixes their fee value at the time of the trial at $10,000, defendants’ expert at $11,000, and their rental value at the same time, Curtiss at $900, defendants’ expert at $1,000. The referee awarded $2,400 for fee damages and at the rate of $240 per annum for rental damages, both awards being less than the evidence warranted. We by no means over-estimate the worth of expert testimony of the class adduced on the trial of this action. It is coucededly competent and has been repeatedly so declared by our highest appellate court. We should therefore consider it, and if our conclusion that the referee was authorized to find the damages at the amounts fixed by him proceeds mainly from the opinions of the experts examined, it is because neither party has afforded us a sufficiently accurate basis for computation by comparison with actual rentals and fee values on adjacent streets.

Lastly, we think that the referee justly inferred from the evidence that plaintiff’s premises were prevented from rising in fee and rental values equally with other property in the same locality, and not abutting upon the railroad, by the latter’s presence and operation. Bohm et al. v. M. E. R. Co.; Somers v. Same, 129 N. Y., 576; 42 St. Rep., 247. _ _

_ _ This question is one of fact, and if the evidence is reasonably open to conflicting inferences, the finding of the trial court should not be disturbed. Becker v. M. E. R. Co., 131 N. Y., 509; 43 St. Rep., 726; Storck v. Same, 131 N. Y., 514; 43 St. Rep., 730. Diminution of light, obstruction of the means of access, corruption of the air, accompanied by constant intrusion of smoke, steam and cinders, inflict self-evident injury, and render, the premises affected less desirable; hence less valuable. The locality of plaintiff’s premises was, prior to the advent of the railroad, in a central and populous part of the city. Instead of augmenting the populousness of the locality and increasing the demand for tenements and dwellings, it is in evidence that the railroad induced residents to leave for remoter parts of the city, thus occasioning frequent vacancies, and inflicting loss of rental upon owners whose premises formerly abounded with desirable tenants, compelling them, as a means of avoiding greater sacrifice, to accept the substitution of a less desirable class. That the railroad was a detriment, therefore, to property elsewhere in the same locality, as well as to abutting property, is apparent, and if, notwithstanding, the property has recovered from the temporary depression caused by the panic of 1873, it seems but a reasonable inference from the facts that the recovery was due wholly to adventitious causes upon which the presence of the railroad exerted no control. Becker v. Met. El. R. Co. ; Storck v. Same, supra.

The judgment should be affirmed, with costs.

Bookstaver and Pryor, JJ., concur.


text:
    John L. Lindheim, Resp’t, v. The New York Elevated Railroad Co. et al., App'lts.

      (New York Common Pleas, General Term,

      Filed October 2, 1893.)

    Appeal by defendants from a judgment for plaintiff, which was entered on the report of a referee.
    Action to restrain the maintenance and operation of defendants’ elevated railroad in the street in front of plaintiff’s premises, and to recover for past damage to the rental value thereof.

      J. Aspinwall Hodge, Jr., for resp’t; R. L. Maynard, for app’lts.
   Per Curiam.

Neither the amount of past damages awarded nor the sum fixed by the referee as compensation for damage to the fee, upon payment of which the injunction directed to issue is to become inoperative, appears to be excessive. The evidence is identical with that in the Struthers case, and affects the next adjoining premises. The grounds urged for reversal on this appeal do not differ from those already considered and held by us to be invalid. Struthers v. N. 7. Elevated R. R. Co. et al, opinion handed down herewith.

Judgment affirmed, with costs.

Bookstaver, Bischoff and Pryor, JJ., concur.


text:
    John Egan, Resp’t, v. Joseph Laemmle, Impl’d, App’lt.

      (New York Common Pleas, General Term,

      Filed October 2, 1893.)

    1. Mechanic’s lien—Judgment in action in district court.
    In an action brought in a district court to foreclose a mechanic’s lien, the judgment adjudged plaintiff entitled to the amount claimed, and that lie had a valid lien therefor, and then directed foreclosure and sale in form as in a judgment of foreclosure in a court of record. Held, that the judgment in so far as it adjudged plaintiff entitled to ssid sum and a lien was valid, and that the objection to the latter portion as exceeding the power of the court could be removed by a modification of the judgment in that respect.

      2. Same—Bar—Action by contractor.
    An action to foreclose a lien by the contractor, to which a material man who has filed a lien is not a party, is not a bar to an action by the material man to foreclose his lien.
    Appeal by the defendant owner from a judgment for plaintiff rendered by the district court in the city of New York for the third judicial district.
    Action by a material man against contractor and owner to foreclose a mechanic’s lien claimed for the unpaid purchase price of certain lumber furnished and used in the making of alterations and repairs.

      John Delahunty, for resp’t; Jones Cochrane, for app’lt.
   Bischoff, J.

This action was brought by plaintiff, a material man, against the defendants, the contractor and owner, to foreclose a mechanic’s Hen claimed under the provisions of the mechanic’s lien law, Laws 1885, ch. 342, for the unpaid purchase price of certain lumber furnished to the contractor and used by the latter in making certain alterations and repairs at the owner’s- request. On the trial it was shown without contradiction that the lumber was sold, delivered and used as plaintiff claimed. It further appeared from sufficient evidence that the purchase price of the lumber remained unpaid, that within the required time after the lumber was furnished and the work of making the alterations and repairs was completed plaintiff caused a notice claiming a lien which substantially complied with all the Requisites of such a notice to be filed in the proper office, and that at the time of its filing there was due the contractor from the owner for such alterations and repairs an amount in excess of that which was due plaintiff. Upon this state of facts plaintiff’s right to the recovery of a judgment for the amount due him and to the enforcement of the lien claimed cannot be successfully disputed.

The judgment is, however, assailed by the owner-defendant upon two grounds: Firstly, that it is unauthorized, because, besides adjudging plaintiff to be entitled to the amount shown tobe due him and that he has a valid lien therefor-, it proceeds to direct foreclosure and sale in form the same as a judgment in an action brought to foreclose a mechanic’s lien in a court of record; and, secondly, that the prosecution of this action was arrested by the pendency of an action in the city court of New York, which was brought by the contractor against the owner for the foreclosure of a lien upon the same premises claimed for a balance alleged to be due upon the same contract with the owner upon which plaintiff’s lien was held enforceable against him in this action. The pend-ency of the city court action at the time of the commencement of this was admitted on the' trial.

Neither objection requires a reversal of the judgment. Section 8 of the Mechanic’s Lien Law, Laws 1885, ch. 342, which provides that the manner and form of instituting and prosecuting an action brought to foreclose a mechanic’s lien to judgment shall be the same as in actions for the foreclosure of mortgages upon real property, is exclusively applicable to courts of record. The same section specifically exempts from its operation such actions as are specially provided for, and such provision is made for actions brought in courts not of record by §§ 9, 10, 11 and 12. Sections 11 and 12 prescribe the form of judgment, if for the lienor, in an action in a court not of record, to consist of an entry to the effect that the plaintiff is entitled to recover the amount adjudged to be due him, with costs, and the evident intention of the legislature was to preserve the simpler form of judgment which ordinarily prevails in courts not of record. Jennings v. Newman, 52 How., 282. Provision for the enforcement of the judgment and lien is made by the execution specially prescribed for such cases by § 11. In so far, therefore, as the judgment entered and appealed from adjudges plaintiff to be entitled to recover the amount shown to be due him with costs, and that he has a valid lien against the owner upon the premises described in the complaint, it satisfies the requirements of the statute, and objection to its further directions can only be made on the ground that they are in excess of the power of the court to render judgment That objection, however, may be removed by a modification of the judgment, for which purpose ample authority is conferred upon this court in the case of appeals from judgments of the district courts in the city of New York by § 3213 of the Code of Civil Procedure. See also Consolidation Act, Laws 1882, ch. 410, § 1488, which extends to actions brought to foreclose mechanic’s liens; Mechanic’s Lien Law, Laws 1885, ch. 342, § 13-.

The contractor’s notice of lien was filed before plaintiff caused his to be filed, and the former’s action in the city court of Mew Yorle was commenced after both notices were filed, but before the commencement of this action. Plaintiff was not made a party to the contractor’s action, and independently therefore of the mechanic’s lien law, Laws 1885, chapter 342, there is no ground for precluding him either from instituting or prosecuting a separate action for the enforcement of his lien. Mor do we find anything in the mechanic’s lien law capable of being invoked with that effect. Any lienor may enforce his lien by a civil action in a court of record (§ 7) or in a court not of record if the amount for which the lien is claimed does not exceed the jurisdictional limit of- the court (§ 9) and such lienor shall be plaintiff in such action (§ 17). If the action is brought in a court of record, prior as well as subsequent lienors and others claiming under subsequent judgments, mortgages and conveyances must be made parties; otherwise, however, if the action is in a court not of record, § 17, and see Sullivan v. Decker, 1 E. D. Smith, 699; Kaylor v. O'Connor, id., 672. It may be contended that the proper construction of the words “any lienor,” as used in § 7, comprehends one of two or more lienors to the exclusion of the others and does not necessarily mean “each” or “every” lienor; but that the latter is the sense in which the legislature intended to be understood, and that there may be as many actions as there are lienors, is clearly expressed by the further provision for a consolidation of actions, and the prosecution of the action first commenced, upon the application of the owner of the premises upon which the several liens are claimed and from the operation of which provision, however, actions brought in courts not of record are expressly exempted, § 18. A different question would of course have been presented if plaintiff at the time of the commencement of this action had been made a party to the contractor’s action, but it is at least debatable whether, under the peculiar provisions of the mechanic’s lien law, Laws 1885, chapter 342, above referred to, the pendency of an action by one lienor could be pleaded in bar to the prosecution of a subsequent action by another lienor who was made a party to the first action, and whether or not the owner is not confined to his remedy of causing the several actions to be consolidated.

If our conclusion, as appellant’s counsel contends, will expose an owner to the burden of having to defend several actions brought by as many different lienors when the rights of all could be just as well adjusted in one action, redress must be sought from the legislature, since wo cannot, upon, any proper theory of construction, defeat its clearly expressed intention.

We do not discover any error in the rulings of the trial court. The judgment should, therefore, for the reasons above stated, be modified by eliminating therefrom all provisions other than that plaintiff is entitled to recover from the defendant, Martin A. Schmidt, the sum of $145.86, principal and interest, with $17.87, the costs of the court below, amounting in the aggregate to :$163.73, and that for the amount so adjudged to be due him plaintiff has a valid lien against the defendants, and each of them, upon the premises described in the complaint. As so modified, the-judgment is affirmed, but without costs of this appeal to either party as against the other.

Pryor, J., concurs.


text:
    William J. Coyle, Resp’t, v. The Metropolitan Life Insurance Co., App’lt.

      (New York Common Pleas, General Term,

      Filed October 2, 1893.)

    W itness—Interested.
    Where a result of the trial adversely to the plaintiff would tend to convict his wife of a fraud on .defendant, she is a witness interested in the event of the ac-ion, and her testimony is not conclusive, but is subject to-discredit, though not directly contradicted, and though her general character for truth and veracity is not impeached.
    Appeal from a j udgment for plaintiff rendered in the district, court in the city of Nov York for the first judicial district.
    Action by the beneficiary to recover the sum which defendant pursuant to the terms of its policy of life insurance agreed to pay upon the death of the insured.

      Henry J. Hemmens, for resp’t; Wm. H. Arnoux, for app’lt.
   Per Curiam.

Plaintiff’s right of recovery in this action was wholly dependent upon the degree of credibility which the trial justice in the proper exercise' of his judicial discretion saw fit to attach to the testimony of plaintiff's wife. She was a witness interested in the event of the action, since the result of the trial adversely to plaintiff would tend to convict her of an attempted fraud upon the defendant. Her testimony, therefore, was not conclusive, but was subject to discredit though she may not have been directly contradicted and her general character for truth and. veracity may not have been impeached. That the consideration-of the above was disregarded by the justice on the trial of this: action, and that the judgment appealed from proceeded from facts assumed and of which there was no .evidence, is too apparent to admit of dispute. Justice requires that there should be a new trial.

Judgment reversed, and new trial ordered, with costs of this appeal and of the court below to the party prevailing on the-new trial.

Bookstaver and Bischoff, JJ., concur.


author: Pryor, J.

text:
    Azema Robinson, Adm’rx, App’lt, v. The Manhattan Railway Co., Resp’t.

      (New York Common Pleas, General Term,

      Filed October 2, 1893.)

    1. Negligence.
    Omission of precaution against a casualty so improbable as to be beyond the range of reasonable apprehension, is not actionable negligence.
    2. Same—Contributors'.
    One who voluntarily assumes a position of danger, the hazards of which he understands and appreciates, cannot recover for an injury-from a peril incident to the position.

      3. Same.
    For an error of judgment under imminent danger, a party is responsible-when by his own fault he incurs the danger,
    4. Same—Railboad.
    The boarding by a. person of an elevated railway train while the gate is closing and the train moving, and persisting, against an effort to remove him, in the precarious position thus obtained, is such contributory negligence as bars recovery for his death in consequence of that position.
    Appeal from, judgment on nonsuit.
    Action by administratrix for death of her intestate by alleged-negligence of defendant.
    At the close of plaintiff’s evidence the court dismissed the complaint.

      Joseph Fitch, for app’lt; Julien T. Davies, for resp’t, Joseph M. Adams.
   Pryor, J.

When, at the close of the plaintiff’s ease, the defendant moved to dismiss the complaint, this state of fact was presented for the judgment of the court: That during a pause of defendant’s train at the Fiftieth street station the intestate was seen “ running for the gate that while the gate was closing and the train in motion, he got a footing on the platform of a car; and that, despite warning and efforts to remove him, he clung to the platform until he struck the railing, and was so precipitated to his fatal fall.

The appellant imputes negligence to the defendant in three particulars. The first allegation of fault is, “ in maintaining a guardrail at the end of the platform just of sufficient height to trip and throw headlong a passenger circumstanced as was the deceased.” Negligence is the omission of proper care; and proper care is due precaution against a danger likely to happen and reasonably to be anticipated. Against perils that are merely possible and not within the compass of reasonable foresight the law requires no man to make provision; otherwise a responsibility would be imposed quite beyond human infirmity to escape, and to which no limit could be prescribed. Now, was it within the reach of rational anticipation that any one should be “ circumstanced as was the deceased?” In other words, could it have been foreseen, as a fact of probable occurrence, that under the circumstances a man would place himself in the position occupied by the intestate? In our judgment the catastrophe was a casualty beyond the scope of reasonable apprehension, and so was one against which the defendant was under no obligation to make provision.

Again, the appellant argues that the defendant was at fault “in closing the gate and starting the train as the deceased was in the act of stepping upon the platform.” We do not so understand the evidence. On the contrary, the proof is that the intestate essayed to get on the platform while the train was moving and the-gate in process of closing. But, would it be wrongful in the-defendant to start the train and shut the gate while a passenger was in the act of stepping from the platform of the station to the platform of the car? If so, then as long as passengers persist in gaining entrance to the cars, the train must be halted—a conclusion quite incompatible with the celerity of movement essential to rapid transit.

By closing the gate and starting the train while a passenger is in the act of stepping on the platform of the car, the defendant exposes him to no peril. In the present case, the intestate was not endangered by such closing and starting; but the injury he suffered was from clinging to the car in his exposed position. Had he remained on the platform of the station, he would have been secure.

Thirdly, the appellant contends that the defendant was blameworthy “in failing and refusing to open the gate when the deceased was in a position of great danger, through no fault of his." As will presently be seen, the assumption is unwarrantable that the intestate was without fault in attaining his position of peril; and then, the proposition is that negligence is predicable of the misjudged act of the gateman in a sudden emergency with which he was confronted by the misconduct of the intestate—a proposition discredited by the uniform current of decision.

Besides, the gateman was authorized to act upon the assumption that the intestate, when denied entrance into the car would step back on the platform of .the station.

Supposing, however, but not conceding, fault on the part of the defendant, nevertheless our conclusion is that the intestate’s own negligence was the cause of his death.

Admitting that were the evidence conflicting, or its import equivocal, the non-suit would be error; we are unable to find in the record any- dispute as to the essential facts or any doubt as to the inferences they suggest. That the gate was partially shut and the car in motion when the intestate persisted in boarding it, and that the position he assumed anxl obstinately maintained was of obvious and inevitable peril, are propositions upon which the evidence allows no difference of opinion. Upon a question before us an adjudication by the court of appeals supersedes all argument; and by the decision in Solomon v. R. R. Co., 103 N. Y., 437; 3 St. Rep., 636 ; in Card v. R. R. Co., 1 Silv. Ct. App., 199; 3 St. Rep., 641; and in Hunter v. R. R. Co., 126 N. Y., 18; 36 St. Rep., 367, we are constrained to affirm this judgment of non-suit.

The appellant essays to distinguish her case by the circumstance that whereas in Solomon v. R. R. Co. it appeared that the intestate was familiar witli the operation of the trains, here the intestate was ignorant of their movements and management; but supposing such ignorance to have imposed upon him a less instead of a greater diligence, it was still incumbent on the plaintiff, in disproof of her intestate's negligence, to show such ignorance; and of the fact she gave no adequate evidence.

Another infirmity of the position is, that in the Solomon case the court ruled that the attempt to board the moving train was in itself an act of contributory negligence.

Assuming 'that the intestate was “properly upon' the train,” ithe appellant argues that he was “ placed in imminent peril by the defendant’s act,” and so was not responsible for his mis judgment in continuing on the platform. But, by the decision of the court of appeals, the intestate was wrongfully on the train ; that is, was there by an act of negligence which made him responsible for the consequences of the position. “ The rule that a person in a position of danger is not responsible for a mistake in getting out of it, is subject to the qualification that he must have got into the danger without fault or negligence of his own.” Aiken v. R. R. Co., 17 Am. St., 775.

The dismissal of the complaint is justified by still another familiar rule of law, namely, “ One who knows of a danger from the negligence of another, and understands and appreciates the •risk therefrom, and voluntarily exposes himself to it, is precluded from recovering for an injury which results from the exposure.” Fitzgerald v. Company, 155 Mass., 155; 31 Am. St., 537. The presumption is that the intestate was a man of common sense and ordinary experience; as such he must have known the perils of the position ; and yet he voluntarily assumed it and pertinaciously maintained it. It is a clear case for the application of the maxim volenti non fit injuria.

We see no escape from the conclusion that the learned trial judge correctly disposed of the case; and accordingly the judgment is affirmed, with costs.

Daly, Oh. J., and Bischoff, J., concur.


text:
    Oscar Compton, Resp’t, v. Henry E. Bowns, App’lt.

      (New York Common Pleas, General Term,

      Filed October 2, 1893.)

      I. Appeal—Case.
    A question of law upon uncontradicted evidence is raised by an exception to the ruling of the court, and to present that question on appeal from the city court it is not necessary that the case should purport to contain all the evidence.
    2. Limitation—Payment.
    A payment made and intended as of the whole amount due and in discharge of the entire indebtedness, is ineffectual as part payment to defeat the operation of the statute of limitations.
    3. Same—Mutual account.
    An account of items upon one side and payments merely upon the other is not a mutual account.
    4. Same.
    Payment of the ascertained balance of an account in settlement of the dealings between the parties does pot constitute an item of account from which the statute of limitations begins to run, within § 386, Code of Civil Procedure.
    Appeal from judgment of the general term of the city court of Hew York, affirming judgment on verdict.
    Action on an account for balance of commissions on sales of cargoes of coal for defendant
    The case appears in the opinion.

      James L. Bishop, for app’lt; Hyland & Zabriskie, for resp’t.
   Pryor, J.

Upon the conclusion of plaintiff’s evidence the defendant moved to dismiss the complaint on the specific ground that the claim in suit was barred by the statute of limitations ; and again, at the close of the case, for the same reason, he requested the direction of a verdict in his favor.

To enable us to determine whether, in denying the motions, the court below committed legal error, it is not necessary that the record should purport to contain all the evidence. Remsen v. Wheeler, 3 Silv. Ct. App., 43; 31 St. Rep., 385; Halpin v. Ins. Co., 118 N. Y., 165 ; 28 St. Rep., 788. The exception to the denial of the motions duly presents the question for adjudication. Turner v. Weston, 133 N. Y., 650, 651; 45 St. Rep., 301.

It is conceded that the statute of limitations is a conclusive-answer to the action, unless the defense be obviated by the payment on the 7th of June, 1882. The legal effect of that payment is the solitary question before us.

Treating the payment as on account of a claim against which the statute was running, its inefficacy to prevent the bar is plainly apparent. By the uncontroverted evidence the paymen t was of the balance of account between the parties, and was intended by the defendant in full settlement of his entire indebtedness to the-plaintiff.

“ The account on February 15th stood to his credit $359.54. I added interest to June 7th $6.78, which made $366.42. I gave-him a check on June 7, 1882, adding interest from February 15th ; the amount was $366.42. This closed the whole business.” To the same effect is the testimony of the plaintiff himself. “ I received a sum of money from him by check dated June 7, 1882 ; $366.42; that sum was the balance shown by his account * * *" just the sum which Mr. Bowns admitted to be due to me.”

It is elementary law that the effect of part payment in defeating the operation of the statute of limitations depends upon the-promise it implies to pay the residue; but if the payment be intended, not as a discharge pro tanto, but as a complete liquidation of the entire demand, how can an engagement to pay more be inferred? The implication of an acknowledgment of the continuance of the debt from an act supposed and designed to extinguish it, and of a promise of further payment from a payment made and intended as final and complete, is a palpable absurdity. Arnold v. Downing, 11 Barb., 554; Harper v. Fairley, 53 N. Y., 442; Sands v. Gelston, 15 Johns., 511 ; Hale v. Morse, 49 Conn.,. 481; Weston v. Hodgkins, 136 Mass., 326; Parsons v. Clark, 59 Mich., 414; Wood on Lim., § 97; Buswell on Lim., § 77.

Apprehending the force of the foregoing argument, the respondent seeks shelter under § 386 of the Code of Civil Procedure;, but this provision is as ineffectual as § 395 to rescue his claim from the operation of the statute. For, in the first place, the-account, consisting apparently of debits on the one side and payments on the other, is not the mutual, open and current account, where there have been reciprocal demands between the parties,”' contemplated by the statute, Green v. Dishrow, 79 N. Y, 1, and, in the second place, if it be such an account, still the payment relied on to defeat the statute being in discharge of the balance upon a closed account, and in final settlement of the transactions-between the parties, cannot, in the nature of things, be that “ item. ” in “ an open and current account ” from which the cause ■of action accrues and the statute of limitations begins to run. The proposition is so self-evident as to dispense with argument to •elucidate and sustain it. It is an inevitable corollary from the reason of the rule of limitation applicable to mutual accounts. Green v. Disbrow, 79 N. Y., 1, 10; Gunn v. Gunn, 58 Am., 447, 454.

Judgment reversed and a new trial ordered, costs to abide the -event.

BookstAVER and Bischoff, JJ., concur.


author: Finch, J.

text:
    William Hill, App’lt, v. The Mayor, etc., of the City of New York, Resp't.

      (Court of Appeals,

      Filed October 24, 1893.)

    1. Hew York city—Wharfs and piers—Dumping ground.
    Hotliing beyond the use of a pier or piers for the shipment of refuse by water was authorized or contemplated by chapter 367 of the Laws of 1881. It did not contemplate the selection of half a pier, and so exposing private owners of the other half to the inevitable injury of such a selection.
    3. Same.
    An authority to use a public pier for the shipment of street sweepings is not an authority to build upon it a “ dumping board" inclosed on the side facing the other part of the pier, with a long approach, etc., which permanently excludes the public use, and then to make it a storehouse for the collection of scavenger’s refuse.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment for defendant entered at special term.

      Thomas G. Shearman, for app’lt; D. J. Dean, for resp’t.

       Reversing 45 St. Rep., 693.

   Finch, J.

We may concede almost every proposition urged by the defendant without reaching the question upon which the judgment rendered finally depends.

I shall assume, therefore, without so deciding, that the plaintiff owns the east side of pier Ho. 12, and the defendant the west side; that each holds his specific half in severalty, and not as joint tenant, or tenant in common with the adjacent owner; that neither has any private easement in the half adjoining his own, but only such right as flows from the public character of the pier; that what the defendant has done does not amount to a taking of the plaintiff’s property, but merely inflicts upon him more or less of special damage which he suffers beyond that borne by the public; that the law of 1881, which authorizes the setting apart of piers owned by or under the control of the city for the use of its street cleaning department, has not been repealed, but has survived the confusion and complications of the legislation relating to the city, and remains in full force and operation; and that the question presented is solely and alone whether by that enactment the city is protected from a recovery for the damage it has done. . All of the defendant’s propositions are debatable, and about some of them we have disagreed among ourselves, but we choose to leave them open so far as the present opinion is concerned, since conceding them to the respondent we nevertheless do not see how the judgment against the plaintiff can be sustained.

There is practically no dispute about what the city has done and the plaintiff has suffered. The pier is four hundred and fifty-four feet long and nearly thirty-five feet wide, and for many years had been used by sailing vessels drawing eighteen feet of water and more, coming from all parts of the world. On the west, half of this pier the city has built what is called a dumping board for convenience in loading upon scows the sweepings and refuse of the city streets. This structure, is ten feet high and a little more than three hundred and- one feet in length, and with the girder and string piece along its easterly line occupies a width of seventeen feet and five inches, or fully one-half of the entire breadth of the pier. It is inclosed on the sides facing the plaintiff’s ownership, except that there are doors through which persons can enter beneath the cartway above. To get upon it there is an inclined approach beginning about seventy-five feet from South street, up which the dust carts pass to the platform, and ranging along it their contents are transferred into scows to be towed out. to sea. This structure totally excludes the public and the east-side dock owners from any possible use of the west half of the pier, except for a short distance at each end. It does more than that. It so narrows and limits the unobstructed half of the pier owned by plaintiff and his associates, that trucks coming upon, it; cannot pass each other, and many of them cannot turn around at any point opposite the dumping board. The consequence is that vessels are no longer unloaded at this pier because there is no sufficient room for the landing of cargo and the handling of trucks to remove it, and as a necessary result the wharfage on the east side has seriously diminished, and has come almost entirely from vessels mooring at the pier to be loaded which had unloaded, elsewhere.

But beyond the effect of the structure itself, there are proved to exist injurious consequences flowing from the manner of its-use. The refuse thrown upon the scows and piled up much higher than its sides is sorted overby Italian scavengers, who pick out bones and bottles and cans, and whatever they can turn into-use, and throw the ill-smelling and filthy collection upon the surface of the pier, where it remains sometimes for days until it is. taken away by its owners through the doors which have been described, and by the use for that purpose of the half of the pier-belonging to the plaintiff. The stench arising from these collections and from the sweepings and garbage loaded upon the scowsr and often waiting for favorable weather in which to be towed away, is described on one side with a vigor scarcely to be repeated on pages which should be clean, and on the other with a moderation equally remarkable in its way. The witnesses tell us how the ashes and refuse fall off from the scows into the water, and nearly double the amount of dredging necessary to be done on the plaintiff’s side of-the pier, and how they are borne by the wind in clouds, thick and not quite fragrant, over all the vicinity. It is apparent and beyond reasonable question that what the city has done and is doing on its half of the pier is something far removed from, its proper and normal use, which, as between individuals, would be an undoubted nuisance, and which inflicts upon this plaintiff a special damage beyond that suffered by the public.

But to this- the city answers that what it has done has been under the authority of law; that as a municipal corporation, engaged in the performance of a public duty, upon which the public health and comfort depends, and acting by express authority of the legislature, it is not liable for consequential injuries resulting to others, even though its acts would amount to a nuisance as-between individuals. It cites abundance of authority for the general doctrine, running from Radcliff v. Mayor, 4 N. Y., 195, and Bellinger v. N. Y. Cent. R. R., 23 id., 42, down to Atwater v. Trustees of Canandaigua, 124 id., 602; 37 St. Rep., 234. We need not discuss the cases, or consider how broadly the doctrine should be permitted to operate, since one condition or limitation has' been firmly grafted upon it which raises-the final and ultimate question in the case before us. That limitation is that the authority which will thus shelter an actual nuisance must be express, or a clear and unquestionable implication from powers conferred, should be certain and unambiguous, and such as to show that the legislature must have contemplated the doing of the very act in question. For, consider what the proposition is. It upholds a positive damage to the citizen and denies him any remedy; it infringes his normal and recognized rights with absolute impunity; it sets a nuisance at his door utterly unbearable and requires him to bear it. Surely, an authority which so results should be remarkably strong and clear. In U. S. v. Fisher, 2 Cranch, 390, Chief Justice Marshall said: “Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness to suppose a design to effect such objects.” In Cogswell v. N. Y., N. H. & H. R. R. Co., 103 N. Y., 16; 3 St. Rep, 56, Judge Andrews said: “But the statutory sanction which will justify an inj ury to private property must be express, or must be given by clear and unquestionable implication from the powers expressly conferred, so that it can fairly be said that the legislature contemplated the doing of the very act which occasioned the injury.” And in Bohan v. Port Jervis Gas Light Co., 122 N. Y., 18; 33 St. Rep., 246, the same rule was asserted and applied.

We must now examine the authority which the city sets up as a shield and see if it is adequate within the limitation stated to warrant the acts done. It is the act of 1881,” chap 367, § 4, which was transplanted into the consolidation act as § 773. It forms a part of the general scheme organizing the street cleaning department of the city, and reads thus: “ The department, bureau, or city officer, authority or authorities, which shall, from time to time, have the management and control of the public docks, piers and slips of the city, shall designate and set apart for the use of said eommissioner suitable and sufficient slips, piers and berths in slips, located as the said commissioner may require, and such as shall be convenient and necessary for his use in executing the duty hereby imposed upon him, excepting slips, docks and piers on the Bast river set apart for the use of canal boats. The said commissioner may, with the approval in writing of the board of estimate and apportionment, lease piers, slips and wharves for the necessary purpose of the duties by this chapter conferred, whenever suitable piers, slips or wharves owned by or under the control of the city cannot be obtained, or are not set apart and designated as in this section provided.” Undoubtedly we ought to read this authority in connection with the duties imposed upon the department by the rest of the chapter. The commissioner was to clean the streets and remove ashes and garbage and snow. § 704. What he should do with them is not dictated •except by inference. He is authorized to contract for their final disposition, § 709; to provide for burning the refuse and obtain land for such purpose, § 710, and hire or buy steam tugs, scows, boats and vessels necessary for his work. § 705. It is a reasonable inference from the latter provision and from § 773, which I have quoted at length, that the legislature contemplated a shipment of the refuse by water and the use of piers or slips for that purpose, but that is all. Hothing else beyond such use of a pier or piers for the shipment of refuse was authorized or contemplated. It was a pier, not part of a pier, that was to be designated. I admit that the greater includes the less, and that half of a pier might be designated and set apart. What I mean to say is, that the legislature, using the word “ pier,” cannot be said to have contemplated the selection of half of a pier and so exposing private owners of the other half to the inevitable injury of such a selection. Ho such purpose is involved in the words used. Beyond that, there is no language anywhere which can fairly stretch the legislative purpose further than to permit the ordinary, usual and well-understood use of a pier, to which boats could be moored, upon which things could be landed and from which they could be loaded and shipped. Let us remember that the pier to be designated was by the law itself described as a public pier, and that there is not a word in the whole chapter which indicates in any manner that it should cease to be a public pier, or that the public should be permanently and absolutely excluded from any part of it. It cannot be said, and would be an abuse of language to say, that an authority to use a public pier for the shipment of street sweepings is an authority to build upon it such a structure as exists, which permanently excludes the public use, and then to make it a storehouse for the collection of a scavenger’s refuse. Argument can scarcely make the point any plainer. Put the authority conferred and the acts done side by side and it is perfectly obvious from the comparison that no express or implied authority was given for the latter, and that the legislature never contemplated such a nuisance as is shown to exist. The law went no further than to allow the use of a pier for the shipment of the street sweepings, if such disposition of them should prove to be necessary or convenient. The use authorized could only have been such as belonged to and characterized that of a public pier. If the commissioner had moored his barges to the west side and driven his dust carts along the surface and unloaded them into the scows he would have done all that the law can be said to have authorized or contemplated. That would not have permanently obstructed the west half of 'the pier and excluded the public therefrom, or prevented trucks from passing each other or vessels from unloading, or made the dock a place of deposit for the findings of scavengers. There might have been dust and possibly unpleasant odors which the plaintiff would perhaps have been compelled to bear, but the main and substantial evils of which he complains are not within the express scope of the authority, or of any just inference from the powers conferred.

The parallel between the Cogswell case and the one at bar is worth noting. In the former the authority was to run cars ■over an existing road into Hew York city, which made necessary an engine house at the terminal point; in the latter it is to remove refuse by water, which makes necessary the use of slips and piers; in the one the engine house was built adjacent to the plaintiff’s dwelling, and so filled it with smoke and cinders and noxious gases as to render it practically uninhabitable; in the -other the public pier used was the half adjacent to the plaintiff, and was so obstructed as to permanently exclude the public and seriously damage the adjoining ownership ; in the earlier case we refused to stretch the authority given so as to legalize the engine house; in the one before us we similarly refuse to stretch the authority so as to cover a destruction of the public character and public use of the pier, and a transformation of it into a nuisance ■destructive of adjoining interests.

Obviously, the general doctrine which levies upon individuals forced contributions for the benefit of the public, and denies compensation for the injury done, is vulnerable at two points. It is defeated sometimes by construing the harm inflicted into a taking of private property for which compensation must be made, and sometimes by a rigid construction of the authority claimed. Both methods indicate a lurking doubt of the equity of the general doctrine and a disposition to narrow the field of its operation. But we need not discuss it in this case, since it is very clear that it can furnish no protection to the city against the redress sought by the plaintiff.

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

All concur.


author: Andrews, Ch. J.

text:
    Frazier M. Dolbeer, App’lt, v. John Stout, Resp’t.

      (Court of Appeals,

      Filed October 24, 1893.)

    •Stay.
    Proceedings in one cause cannot Be stayed until the determination of another cause pending in another court, where the party against whom the stay is sought is neither a party or privy to such other action, and would: not be hound by any adjudication therein.
    Appeal from judgment of the Mew York superior court, general term, affirming judgment of special term granting defendant’s-motion for order staying all proceedings in the action until the determination of an action pending in the supreme-court.

      Edward S. Clinch, for app’lt; George F. Martens, for resp’t.

      1 Reversing 46 St. Rep., 858.

   Andrews, Ch. J.

The plaintiff was not a party to the action brought by the defendant Stout against F. C. Linde & Co. for damages for the breach by Linde & Co. of the contract of 'storage. This action, though growing out of the same contract, is for a different cause. The-plaintiff is the assignee of• Linde & Co., and as such claims to recover storage charges under the contract. A recovery by Stout in the action against Linde & Co. would not conclude the plaintiff in this action, nor would it be evidence-against him of a breach of the contract by Linde & Co. The defendant in this action may allege and prove the non-performance by Linde & Co. of their contract, and counterclaim any damages he may have sustained thereby to the extent necessary to-defeat a recovery by the plaintiff. But judgment in the other action in favor of the plaintiff therein against Linde & Co. would be res inter alios acta. It would not operate as an estoppel upon the plaintiff, nor would he be bound by any adjudication in that action of fact or law.

Judgments are binding upon parties or privies, but the plaintiff in this action would be neither a party nor privy to any judgment-rendered in the other action.

The legal and equitable rights of. the defendant are fully protected by his being permitted to set up and establish his claim for damages in answer to the claim for storage. We think that the court had no power to stay the plaintiff’s suit under these circumstances. The defendant, if compelled to try the two actions, may be subjected to the expense and inconvenience of a double litigation of questions of fact. But as the result of the first action would not be a relevant fact in the trial of the second action, a temporary stay until the determination of that action will not relieve the defendant from this embarrassment.

We find no authority justifying the staying of proceedings in one cause until the determination of another cause pending in another court, where the party against whom the stay is sought is neither a party nor privy to such other action, and would not be bound by any adjudication therein.

Where the decision in one action will determine the right set up in another action, and the judgment on one trial will dispose of the controversy in all the actions, a case for a stay is presented, but the power exercised by the special term in this case is, so far as we can ascertain, without precedent, nor does it seem supported by reason. See Travis v. Myers, 67 N. Y., 542; Third Ave. R. R. Co. v. Mayor, etc., 54 id., 159; People v. Wasson, 64 id., 167; De Groot v. Jay, 30 Barb., 483.

The plaintiff here, having no interest in and not being a party to the other action, could not intervene therein, and by the order in question the trial of this action may be postponed indefinitely, awaiting the trial and determination of another action, the result of whicli will in no way affect his rights.

We think the order of the special and general terms should be reversed, with costs,"and application denied.

All concur.


author: Earl, J.

text:
    Thomas M. McLoghlin et al., Ex’rs, Resp’ts, v. The National Mohawk Valley Bank, App’lt.

      (Court of Appeals,

      Filed October 24, 1893.)

    1. Banks—Modification of agreement as to interest.
    Where the president of the bank tells a depositor whose account has been drawing interest, that the bank can no longer pay him interest, and requests him to present his certificate and draw his money, the money being presently due, and that if he left Ijis money thereafter it would be without interest, and the depositor, making no objection, leaves his money there, he cannot recover interest upon it after the date of notice.

      2. Same—Evidence.
    The fact that such depositor had contracts with other banks for interest is inadmissible for the purpose of showing that he had such a contract, with this bank.
    Appeal from judgment of the supreme court, general term» fourth department, affirming judgment entered on report of referee-

      J. B. Rafter, for app’lt; Wm. P. Goodelle, for resp’ts.

       Reversing 47 St. Rep., 562.

   Earl, J.

This action was brought by the plaintiffs to recover money deposited by their testator with the defendant. The amount of the principal sum claimed is $2,511.31. The testator opened an account with the defendant in August, 1853, and from time to time made deposits in the bank, and drew checks against his account until May, 1865, when the amount now claimed was the balance due him. The testator died in November, 1888, and from. May, 1865, until that time, there was no entry of debit or credit in his account. Before the commencement of this action, the plaintiffs demanded of the defendant the balance of principal due them, with interest thereon from May 25, 1865, to the date of the demand. The defendant offered to pay the principal, but refused to pay interest, and the controversy between these parties is-whether upon the facts proved it was bound to pay interest upon the balance claimed.

The sole evidence given by the plaintiffs to prove any agreement to pay interest upon the money deposited by the testator was the entries in his account kept in the books of the bank and in the pass book held by him of credits from time to time of interest. It appears from the account, that interest was credited upon the balances for a portion of the time at the rate of five per cent, for another portion at the rate of three and three-fourths per cent, and for another portion at the rate of two and one-fourth per cent» The referee held that these credits were sufficient to show that the account was an interest-hearing account, and he reported in favor of the plaintiffs, giving them judgment for the principal sum, with interest thereon from the 25th of May, 1865, to the date of his report, at the rate of three per cent.

When the account was opened, and until, 1867, Mr. Pomeroy was cashier of the hank, and for many years before and after 1867 Dean Burgess was its president; and after the death of Pomeroy, in 1867, "Henry D. Alexander was its cashier. The referee found that in the latter part of the year 1867 the testator had an interview with Burgess, at which two of the directors of the bank were present, at its banking house during the usual business hours of the day ; that Burgess, speaking to the testator concerning his deposit, said in substance, “You must draw your money ; we can pay no interestto which the testator replied in substance, “ that the bank would bo crippled by "the defalcation, (having reference, probably, to the defalcation of the previous cashier), and they could afford to pay him interest; that it was not necessary for him to have the money;” that Burgess answered, “that it was contrary to the rules of the bank to pay interest; that the bank did not pay interest on deposits and he must withdraw his money ; that they could pay no interest;” that afterwards, in the year 1869, the testator had an interview with the cashier, Alexander, at the defendant’s banking house, during the usual hours of business; that the testator said to Alexander that “ he had called there sometime ago and had talked about his deposits with the old gentleman, meaning Burgess, in the back room, who said they could not pay him interest;” and Alexander replied, “ That is so, we don’t pay anybody interest now; if you desire to deposit your money where they pay interest you had better take it to a savings bank;” and the testator said that “ he would leave his money there until he could get some other place to put it;’’ that Alexander answered, “All right, you can have your money any time you want it.” That some years afterwards the testator met the cashier, Alexander, in the village of Mohawk, after business hours, and asked him if they had concluded to pay him any interest on his account, and Alexander replied, they had not; that they could not do it.” Notwithstanding these facts, proved to the satisfaction of the referee and found by him, he held that there was a continued obligation on the part of the bank to pay interest on the balance of this account

While it is true that the entries of interest in the bank’s account with the testator furnished prima facie evidence that the interest was allowed in pursuance of some arrangement or agreement, they furnished no evidence as to the precise character of that agreement. They did not show what the rate of interest was to be, nor for what length of time, nor under what circumstances interest was to be paid. They certainly furnished no evidence that interest was to be paid to the testator on the balance of his account so long as he chose to leave his money on deposit there. It is perfectly consistent with the entries of interest in the account that the arrangement for the deposit and for the payment of interest was terminable at the option of either party. In 1867, when the testator had the interview with the president of the bank, it is clear that there was no subsisting arrangement for the payment of interest. lie was then at the bank seeking for a promise from the bank to allow him interest, and it positively refused. Iu the subsequent conversation with the cashier it again clearly appears that there was no subsisting arrangement for the payment of interest, as the testator was seeking to make one. So that, upon the facts found by the referee, it seems to us that if some kind of arrangement for the payment of interest prior to May 25, 1865, could be found to have existed, that arrangement was not in force at the time of these conversations.

But, even if it was in force prior to these conversations, it is quite clear that it was then abrogated. We must assume that the president of the bank, with two directors engaged in the business of the bank, in the banking office, to whom the testator applied in reference to the allowance of interest, had authority to act for the bank. He was there informed that the bank would pay him no interest; that it was contrary to its rules to allow interest, and that he must draw his money. If the matter had rested there, and nothing more had been said, he could not after that have claimed interest on his account. He went away apparently acquiescing in what was said to him, and after that he had no arrangement for the continued allowance of interest to him, and there was no binding contract to compel the bank to pay interest The subsequent conversation with the cashier is still more explicit and significant. In that conversation the testator alluded to the conversation he had had with the president, and he was informed that the bank did not pay interest on deposits, and that if he desired to deposit his money where he would be paid interest he had better take it to a savings bank; and he replied that he would leave it there until he could get some other place to put it. The cashier assented to this, and told him he could have his money any time he wanted it. The testator went away apparently satisfied with that arrangement, and it is impossible to perceive how he could claim interest after that. Whatever the prior arrangement may have been, there wa's then a distinct agreement that he should leave his money without interest until he could get some other place to put it, and the prior arrangement, if one existed, was superseded. Under such circumstances we think there is no authority, and we know of no principle of law, which would authorize the allowance of interest on the testator’s account.

The case of Read v. City of Buffalo, 74 N. Y., 463, relied upon by the plaintiffs, bears no analogy to this. There the defendant issued interest-bearing obligations, payable when the money should be collected or realized from taxes for local improvements, with interest, three months from date. The necessary funds for paying the obligations were collected, and subsequently the defendant’s common council passed a resolution that after a certain date interest on the obligations should cease, and the treasurer published notices thereof in the official city papers; and it was held that that resolution and the published notices thereof did not stop the running of interest. There the defendant by its own acts, not communicated to the plaintiff, claimed to have absolved itself from the payment of interest, and it was held that the notices published of the resolution of the common council did not affect the rights of the plaintiff in the absence of proof that such notices ever came to his knowledge. Here the testator was distinctly notified that interest would no longer be paid, and the money was really left in the bank under a new arrangement, distinctly understood by both parties, that the account should not draw interest.

It may be true, as claimed by the plaintiffs, that if a bank should issue certificates of deposit bearing interest until paid, it could not stop the running of interest by a simple notice to the depositor that it would no longer pay it. But if it should say to him that it could no longer pay him interest, and request him to present his certificate and draw his money, the money being presently due, and say to him that if he left his money thereafter it would be without interest, and he, making no objection, should leave his money there, we know of no principle of law which would enable him to recover interest upon it.

We are, therefore, of opinion that upon the facts found by the referee the judgment should have been in favor of the defendant, dismissing the complaint.

But as there must be a new trial of the action, we ought further to notice some evidence given by the plaintiffs upon the trial, which the learned counsel for the defendant claims was erroneously received and considered by the referee. The plaintiffs were permitted to show that the testator had deposits in various other banks, upon which he was allowed interest, one bank being in New York, one in Little Falls, one in Syracuse, and another in ■Cortland. This evidence, as we understand it, was offered to show that the account with the defendant was an interest bearing account. The testator’s transactions with the other banks had no relation whatever with his transactions with the defendant, and it does not appear that the defendant had any knowledge whatever of them. His transactions with those banks were offered as independent evidence to show that while he was receiving interest upon all his money deposited with other banks, it was wholly improbable that he would make deposits with the defendant without .any interest, or that he would leave his money there without interest. While this evidence may be what is called moral evidence, more or less convincing, we are satisfied that it was illegal. The fact that he had contracts with other banks for interest has no legal tendency to show that he had such a contract with this bank; and we know of no well-adjudicated case which holds such evidence under such, circumstances to be competent. As a. general rule it is inadmissible, for the purpose of showing that A. did a particular thing at one time, to prove that he did a similar thing at another time. Evidence must legitimately tend to prove the issues between the parties. In 1st Gfreenleaf’s Evidence, § 52, it is said: “ This rule excludes all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter in dispute; and the reason is that such evidence tends to draw away the minds of the jurors from the point in issue, and to excite prejudice, and mislead them; and, moreover, the adverse party having had no notice of such a course of evidence, is not prepared to rebut it.” If this evidence was competent then it would be •difficult to limit the evidence which the plaintiffs could give of the conduct of their testator, although unknown to the defendant, showing that it was improbable that he would leave his money with the defendant without interest; and the defendant might show that he did deposit money with other banks and loan money to individuals without interest, or even that he kept on hand large amounts of idle money, and it might show that other banks in the vicinity did not allow interest on open running accounts, and that it did not allow interest upon such accounts to -other depositors; and thus many unexpected issues would be brought into the trial of the action, and the real issues be obscured and the minds of the jurors diverted therefrom and confused. Such evidence is too remote, inconclusive and uncertain in its bearing; and evidence of a similar character was condemned in the following cases: Carter v. Pryke, 1 Peake’s Cases, 95; Wood v. Poughkeepsie Ins. Co., 32 N. Y., 619; Green v. Disbrow, 56 id., 334; Carroll v. Deimel, 95 id., 252. Where one is charged with carelessness it would be incompetent to prove that he was habitually careless; or if charged with assault and battery that he was in the habit of committing assaults upon other people, and so many illustrations might be put showing that facts which constitute moral evidence, quite convincing, may yet be irrelevant when tested by legal rules.

We are, therefore, of opinion that the judgment should be reversed and a new trial granted, costs to abide event.

All concur.


text:
    Mary Thorn, Ex’rx, Resp’t, v. Oliver T. Beard, App’lt.

      (Court of Appeals,

      Filed October 24, 1893.)

    ■.Costs—Assignee of claim as collateral not a person beneficially interested withn § 3247 of the Code.
    Where a claim is assigned to secure a debt due from the assignor, and the litigation over the claim is carried on from beginning to end by the assignor and his executrix after his death, the assignee taking no part in the litigation, the latter is not liable for the costs recovered by the defendant under § 3247 of the Code.
    Appeal from order of the supreme court, general term, second -department, affirming order denying motion to compel one Peter- D. Hayt to pay defendant’s costs.
    On the 3d day of January, 1888, William I. Thorn, being indebted to Peter D. Hayt, for the purpose of securing the payment of the indebtedness, assigned to him a demand which he claimed to have against the defendant, Oliver T. Beard. Thereafter, in May, 1889, Thorn commenced an action against Beard upon his •demand, and in ^November, 1889, he recovered a judgment thereon 'for $1,800 and costs. Beard appealed from that judgment to the-general term, and while the appeal was pending there Thorn died, and his executrix was substituted as plaintiff in his stead. In. May, 1891, the judgment was affirmed at the general term. In June thereafter Hayt commenced an action against Mrs. Thorn, the executrix, alleging the assignment of William I. Thorn tollina of his claim against Beard and the recovery of judgment thereon, and he prayed judgment of the court establishing his-right to the judgment, and that the costs and counsel fees due to any person therein might be adjusted. Thereafter Hayt and Mrs. Thorn entered into an agreement adjusting the amount of his interest in the judgment, and it was therein stipulated that one of' the plaintiff’s attorneys, Morschauser, had a lien upon the judgment to the extent of $750, which should be paid to him, and that the balance of the judgment and interest should be paid toHayt “ when collected ; ” and it was provided that judgment, might be entered upon the agreement,. In April, 1892, Beard appealed from the judgment to the court of appeals, and there the-judgment was reversed and a new trial granted; and upon the new trial the complaint was dismissed, and Beard had judgment, in his favor for $728.60 costs. Beard then made a motion for an order requiring Hayt to pay his costs under § 3247 of the Code.
    Further facts are stated in the opinion.

      Oliver T. Beard, for app’lt; Hackett & Williams, for resp’t.

       Affirming 54 St. Rep., 69.

   Earl, J.

Section 3247 provides as follows: “ Where an action is brought in the name of another by a transferee of the cause of' action, or by any other person who is beneficially interested therein; or where, after the commencement of an action, the cause-of action becomes, by transfer or otherwise, the property of a person not a party to the action, the transferee, or other person so interested, is liable for costs in the like cases, and to the same extent, as if he was the plaintiff; and where costs are awarded against the plaintiff the court may, by order, direct the person sellable to pay them. ”

So far as there is any conflict in the affidavits read upon the-motion, we must take the facts to be as stated in the affidavits on the part of Hayt, and from his affidavits it appears that he did not commence the action in the name of Thorn, nor did he authorize or procure its commencement, and at no stage of the litigation did he carry it on. He cannot, therefore, be made liable for costs under the first clause of the section on the ground that-as transferee of the cause of action, or as one beneficially interested therein, he brought the action in the name of Thorn. Nor can he be made liable under the second clause of the section on the ground that after the commencement of the action the cause of action became, by transfer or otherwise, his property. The judgment was not assigned to him and he never owned it He had an interest in it to the full amount due thereon above $750, by virtue of his assignment of the claim, which sum of $750 was-payable out of the judgment to another party, and the balance of the judgment payable to him was to.be paid “ when collected.”' So we have a case where a claim was assigned to Hayt to secure a debt to him from the assignor where the litigation over the claim was carried on from beginning to end by the assignor and his executrix after his death, Hayt taking no part in the litigation; and such facts in our opinion do not make him liable for the costs recovered by the defendant in the action under the section of the Code cited.

The order of the general term should be affirmed, with costs.

All concur.