text:
    Joseph Blumenthal, as Receiver, etc., Resp’t, v. Benjamin F. Einstein et al., as Trustees, etc., App’lts.

      {Supreme Court, General Term, First Department,

      Filed November 16, 1894.)

    Counterclaim—Insolvent estates.
    Where a claim, made by one insolvent estate against another, is subject to a setoff, it is not proper to compute the dividend on the total claim and then deduct the setoff from it, hut to deduct the setoff from the claim and then compute the dividend on the balance.
    Appeal from a judgment in favor of plaintiff.

      A. R. Dyett, for app’lts; William Man, for resp’t.
   Follett, J.

On August 3, 1891, Abraham Backer became in-insolvent, and made a general assignment for the benefit of creditors to Benjamin F. Einstein. Subsequently, the general assignment was superseded by an agreement entered into between Abraham executed by 97 per cent, of the creditors, so it would take effect Backer, his wife, his assignee, all of his creditors, and three trustees. By the agreement, all of Backer’s property was conveyed and assigned to the three trustees, who undertook to convey it into money, and distribute the avails pro rata among Backer’s creditors. This agreement is dated “October, 1891,” but when it was completely executed does not appear, but it was after December 15, 1891. October 7, 1891, Morris and Abraham Schneider recovered a judgment in the supreme court against Abraham Backer for $51,541.77. When Backer failed, Morris and Abraham Schneider were liable as accommodation indorsers for Backer on several promissory notes, aggregating $41,250, which were made by Charles Schneider & Co. Before December 15, 1891, Abraham Backer died. On December 15, 1891, Morris and Abraham Schneider and the three trustees agreed, in writing, that in case the compromise agreement should be according to its terms "(as it subsequently was), the Schneiders should be recognized as creditors of Backer to the amount of their aforesaid judgment against him, and for whatever sum they should pay, as accommodation indorsers, on the notes made by Charles Schneider & Co., less $15,000, which they agreed should be taken as the value of the claim of Morris and Abraham Schneider against Charles Schneider & Co., by reason of their payment of those notes. Subsequently, Morris and Abraham Schneider paid $16,950.16 on the accommodation indorsements. Morris and Abraham Schneider were partners, engaged in business under the name of M. & A. Schneider, and, becoming insolvent, the plaintiff was, January 8, 1892, appointed receiver of their property. When Abraham Backer failed, he was liable for $38,584.10 as an accommodation indorser on the notes of M. & A. Schneider, on account of which the defendants, as trustees, paid to the holders of the notes 20 per cent., amounting to $7,716.82. It is conceded that there is due from the defendants to the creditors of Abraham Backer a dividend of 20 per cent.

The sole question is how these claims should be offset as between these insolvent estates. The referee’s result was reached as follows:

October 7, 1891, judgment against Backer.......... $51,541 77 M. & A. Schneider paid on accommodation indorsements of Charles Schneider & Co.’s notes.......................$16,950 16 Deduct M. & A. Schneider’s claim against Charles Schneider & Co., as agreed____ 15,000 00 1,950 16 Total amount of claims against Abraham Backer.... $53,491 93 From this amount the referee deducted the dividend paid by defendants on Backer’s accommodation indorsements for M. & A. Schneider............... 7,716 82 $45,775 11 Twenty per cent, on $45,775.11 equals $9,155.02, for which, with interest as stipulated, the referee ordered a judgment. The defendants insist that the offset should have been made as follows : Twenty per cent, on claims of plaintiff against Backer ($53,491.93) equals............................ $10,698 38 Deduct amount paid by defendants on Backer’s accommodation indorsements for M. & A. Schneider. 7,716 82 Due from defendants to plaintiff..............$ 2,981 56

When this action was begun, Morris and Abraham Schneider would have had, had their claims not passed to their receiver, a right of action against the administrator or executor of Abraham Backer for $53,491.93. About this fact there is no dispute. By how much could this amount have been reduced by the administrator or executor ? Hot by $38,584.10, the full amount of Backer’s liability as accommodation indorser for Morris and Abraham Schneider, for that sum had not been paid by Backer or by his estate; but liis personal representative would have been entitled to set off only the amount paid by him or' them, or by both, which was $7,716.82. Powell v. Smith, 8 Johns. 249; Bonney v. Seeley, 2 Wend. 481; Hannay v. Pell, 3 E. D. Smith, 432; Elwood v. Deifendorf, 5 Barb. 398. Deducting $7,7Í6.82 from $53.491.93 leaves $45,775.11, the amount to be recovered against Backer if living, or, if dead, against his personal representative. That such is the legal rule of setoff, as between persons who are solvent, will not, we think, be disputed. But the defendants insist that the equitable rule, as between insolvent estates, is different, and that in the case at bar the litigants represent two insolvent estates; that neither litigant is liable for the debts of his principal, but is liable to pay only the per cent, which the property in hand produces, to wit, the defendants are liable in the sum of $10,698.38 to the plaintiff, who is liable to the defendants in the sum of $7,716.82, which being deducted leaves $2,981.56 as the full measure of the liability of the defendants to the plaintiff. The difficulty with this position is that the sum of $10,698.38 represents not the debt owing by Backer to the plaintiff, but a dividend thereon, while the sum of $7,716.82 represents the entire debt of M. & A. Schneider to the defendants, not a dividend on a debt owing by M. & A. Schneider to Backer. It is true that the latter-amount represents a dividend, but it is a dividend due and paid to other creditors holding notes indorsed by Backer for the accommodation of M. & A. Schneider. It will be seen that the defendants seek to set off the whole debt held by them, against a dividend on a debt held by the plaintiff. In equity a solvent surety .is protected from the claims of his insolvent creditor. For example, in case A, who is solvent, owes B, who is insolvent, $100, and A is surety for B in the sum of $200, equity will restrain B from collecting the $100, and will compel its application on the debt for which A is. surety. So, in the case at bar, if Backer’s estate were solvent, it would not be compelled to pay any sum to the plaintiff so long as it was liable in a greater sum as accommodation indorser. But the estate is not solvent, and it is not pretended that another dividend will be made, and so only existing claims can be considered in adjusting the demands. The amount of the plaintiff’s claim against Backer’s estate is absolutely fixed at $53,491.93, and it can never fluctuate. If the claim of Backer’s estate were absolutely fixed at $38,584.10, then it would be adjusted by deducting principal from principal, and computing the percentage upon the remainder, as urged by the defendants, which would be equivalent to computing the percentage which* each estate pays on its total liability, as is shown by this statement:

$53,491.93—$38,584.10=$14,907.83 X .20.......... $2,981 56 $53,491.93 X .20.....................$10,698 38 $38,584.10 X .20..................... 7,716 82 --$2,981 56

But the defendant’s claim is not fixed at $38,584.10, but it is fixed at $7,716.82; and there is no evidence in the record from which the referee would have been justified in finding that the claim would be increased in the future, and so we think that the referee adopted a correct principle in adjusting these demands. The plaintiff, through his attorney, repeatedly wrote letters to the defendants asking for an adjustment of the claims, to which no attention was paid, arid we think the facts justified the referee in charging the defendants with costs.

The judgment should be affirmed, with costs. .

All concur.


source: Caselaw Access Project

author: Osborne, J.

license: Public Domain

text:
    Edward A. Kitchell, Resp’t, v. Brooklyn Heights Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed, November 26, 1894.)

    1. Appeal—Weight of, evidence.
    A verdict, upon conflicting .evidence, will not be set aside as against the weight of evidence, though the number of witnesses on the part of the defendant preponderates, where several of them are its employes.
    2. Damages—Excessive.
    A verdict for $2,000 for the loss of services of plaintiff’s seven year old daughter was held, in this case, not to be excessive.
    Appeal from a judgment entered on a verdict in favor of plaintiff".

      Morris & Whitehouse, for app’lt; Dailey, Bell & Crane, for resp’t.
   Osborne, J.

This action was brought to recover damages sustained by plaintiff for the loss of services of his daughter in consequence of injuries sustained by her through the alleged negligence of the defendant, and for medical expenses in the treatment of said injuries. Plaintiff obtained a verdict for $2,000, and this appeal is from the judgment entered thereon, and from the order denying a motion for a new trial. The learned counsel for the appellant contends that the judgment should be reversed, on the grounds that the verdict was against the weight of evidence, •that the plaintiff failed to prove freedom from contributory negligence or negligence of the defendant, and that the verdict was excessive

It appears from the case made by the plaintiff: That he resided on the south side of Myrtle avenue, at the corner of Schenck street. That his daughter was a bright, intelligent child, seven years old, accustomed to go on errands to the stores. That, on the afternoon of September 17, 1893, plaintiff, in company with his parents, his wife, and the child in question, were returning home from Greenpoint, about 4 or 5 o’clock, and were passengers on one of defendant’s trolley cars running through Myrtle avenue. That plaintiff requested the conductor of the car to stop at Schenck street, but that the car went about 50 feet below Schenck street before stopping. That plaintiff got out of the car first, with his little girl, leaving his wife and parents to follow, alighting from the right-hand side of the car, which was on the northerly track on Myrtle avenue. That in company with his child he went around the rear of the car, and proceeded to cross to his residence, on the south side of Myrtle avenue, moving in a diagonal direction. That went he had gotten within from 8 to 12 inches of the southerly or up track, he looked down Myrtle avenue as far as Steuben street, a distance of about 150 feet, and saw no car approaching. Just then he heard a scream from his wife, who had made a misstep in coming out of the car, and he left the child, and hurried back to the car, to see what was the matter. When he got back to the car, he found his wife stepping down from the car. At that moment, he heard a shout from the motorman of an up car, “Get out of the way!” He turned and saw his child in the middle of the up track, coming towards him, she having evidently proceeded on her way across the track after her father left her to go back to, his wife. The next instant the up car. came along very rapidly, going at the rate of 12 to 15 miles an hour, struck the child, threw her down, and dragged her along, the car going some 40 or 50 feet before it stopped. Plaintiff rushed bach to the car, and sized his child by the skirts, and ran along some 20 feet with the car, endeavoring to beep her from being dragged under the wheels. When the car stopped, it was pushed back a short distance, and the child was taken out from under the car, somewhat bruised, and her left thumb so badly mangled that it had to be amputated. The evidence of the plaintiff was corroborated by hisfather, who witnessed the accident while on the rear platform of the car, awaiting an opportunity to alight There was also evidence that late in the afternoon the motorman called at the plaintiff’s house, and there said, “As soon as I saw her on the track, I called to her to get off, and she turned back.” The evidence on behalf of the defendant flatly contradicted the case made by the plaintiff. The testimony adduced on its behalf was to the effect that the car was proceeding on the up track very slowly, the motorman ringing his gong while approaching and passing the down car, then at a halt; that just as the front of the up car was abreast of the rear dashboard of the down car, the child darted from behind the down car, and ran into the up car, striking it at the front corner of the front step, the effect of which was to throw her down, and cause the injuries complained of; that at that time the motorman had no power on, it being a down grade; that he applied his brakes as quickly as possible, and succeeded in stopping his car in a position that left his front wheels in a line with the rear dashboard of the down car when it came to a standstill. It further appeared that the front wheels of the car were nine feet eight inches back of the front dashboard.

It will be seen from the foregoing that the testimony of the witnesses on either side was in direct conflict as to how this child came to be hurt, and it was peculiarly within the province of a jury to determined where the truth lay. So also were the questions of contributory negligence of the plaintiff and his child and of the negligence of the defendant. These questions were submitted to the jury in a charge to which no exception was taken, and the learned trial judge also charged the jury that if they believed the contention of the defendant the plaintiff was not entitled to recover. We have very carefully scrutinized the evidence in this case, and as a result of such scrutiny we cannot say that this verdict should be set aside as against the weight of evidence. While it is true that the number of witnesses on the part of the defendant preponderated, yet it is to be observed that several of them were employes of the defendant, with a natural tendency to favor their employer, and to acquit themselves of blame. Nor is the testimony free from contradictions and discrepancies in many important particulars. The jurors saw all the witnesses on the •witness stand, heard them testify, and are more capable of determining their credibility than we are from a perusal of the printed testimony. The question of contributory negligence, as well as of negligence of the defendant, were also questions for the jury to determine, and they were fully instructed as to the principles of law applicable to a case of this character, and we can see no reason for disturbing the verdict on that ground. Brown v. Twenty-third St. R. R. Co., 21 St. Rep. 475; 4 N. Y. Supp. 192; affirmed, 121 N. Y. 667; 30 St. Rep. 1014.

Nor are we prepared to say that this verdict should be interfered with on t-he ground of excessive damages. It appeared that this child had her left thumb amputated, and that the plaintiff incurred a bill of $100 for medical treatment. When we consider the importance of the thumb as a member of the hand, and how necessary its presence is to make the hand available for use in nearly all ordinary vocations, we cannot say that a verdict for $2,000 was so excessive as to indicate that the jury " acted under some improper bias, influence, or prejudice” in awarding that amount.

We are therefore of the opinion that the judgmént and order denying motion for a new trial should be affirmed, with costs.


text:
    John S. Tholen, Resp’t, v. Brooklyn City Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed November 26, 1894.)

    1. Evidence—Expert.
    A motorman on defendant’s electric cars may testify, as an expert, as to the distance within which a car may he stopped at a given point on its track.
    2. Same—Reasonable doubt.
    The rule as to reasonable doubt does not apply to civil cases.
    8. Appeal—Charge.
    An exception to a request to charge, which precludes the jury from construing certain testimony and determining what particular facts it establishes, is not well taken.
    4. Same.
    A request to charge on a point, on which the court has already fully charged the law, is properly refused.
    8. Negligence—Question eor jury.
    The question of defendant’s negligence was held, under the facts of this case, to have been properly submitted to the jury.
    Appeal from a verdict entered on a verdict in favor of plaintiff.

      Morris & Whitehouse, for app’lt; Shorter & Kurth (Thos. M Pearsall, of counsel), for resp’t.
   Osborne, J.

Plaintiff brought this action to recover for loss of services of his child, Annie, in consequence of injuries sustained by her through the negligence of defendant, which resulted in the amputation of both of her legs. Plaintiff obtained a verdict, and from the judgment entered thereon, and the order denying a motion for a new trial, defendant appeals.

It is urged by the learned óounsel for the appellant that the motion to dismiss, made at the close of the plaintiff’s case, and renewed after all the evidence was in, should have been granted, and that the exceptions to the refusals to dismiss were well taken. After a careful review of all the evidence, we think that these motions were properly denied.

It is not disputed that on the 8th day of February, 1893, between 3 and 4 o’clock in the afternoon, plaintiff’s child was run over by one of defendant’s trolley cars on Third avenue, some distance north of Sixteenth street, and suffered the injuries complained of. It is also not disputed that the child started from the gutter on the west .side of Third avenue to cross the avenue; that she crossed the westerly track, and had reached the west rail of the easterly track, traversing, in so doing, a distance, in all, of 23 feet and 5 inches, when she stumbled and fell on the west rail of the easterly track, and was run over by one of defendant’s cars traveling in a northerly direction, and was taken out from under the car, back of the hind wheels thereof, after the car had stopped. It further appeared from the evidence on behalf of the plaintiff that the day was bright and clear; that Third avenue was unobstructed ; that the child started from the west side of Third avenue, a short distance north of Sixteenth street, in full view of the motorman ; that at the time she started the car was south of the northerly crosswalk at Sixteenth street and Third avenue, and that she fell on the rail opposite a pole with a barber sign on it, which point is 35 feet 4 inches north of the north side of the northerly crosswalk; that at the time she fell she was at a distance from the front of the car, variously testified to, of 25 to 50 feet; that the car was going rapidly, and that after it struck the child it did not stop till it got in front of the plumber’s shop, the southerly line of which was 75 feet from the north crosswalk at Sixteenth street, thus showing that the car traveled about 40 feet, after it struck the child, before stopping. A witness who had been in the employ of the defendant as a motorman further testified that on a dry track, such as this was, a car going at the rate of 10 miles an hour could be stopped within a distance of 4 or 5 feet. We think from this brief epitome of the plaintiff’s evidence that he made out a case which it was necessary to submit to the jury. It was clearly the duty of the motorman to keep a careful lookout in front of him, and if he had done so he would certainly have seen this little child traversing the space of over 23 feet before she reached the track he was on ; and, seeing her approaching his track, it was also his plain duty to have slowed down, and obtained such control of the speed of his car as would have enabled him to avoid injuring this child in case she fell, as she did in this case. Moebus v. Hermann, 108 N. Y. 349; 13 St. Rep. 648; Huerzeler v. Central C. T. R. R. Co., 139 N. Y. 490; 54 St. Rep. 863. That the motorman did not pursue this course is plainly shown by the testimony that the car went about 40 feet, after striking the child, before it stopped. While the evidence on the part of the defendant contradicted that on behalf of the plaintiff in many particulars, yet we think that the testimony of the motorman of the car confirmed the claim of the plaintiff as to the negligence of the defendant. This motorman testified that he saw the child when she first started from the west side to cross Third avenue ; that his car was then between the northerly and southerly crosswalks of Sixteenth street; and although he claimed that he was only going at the rate of six miles an hour, and that the child fell about four feet in front of his car, yet he also testified that his car might have moved 30 feet, after striking the child, before stopping, although there was a slight up grade. A portion of his testimony is as follows: “Q. And you saw the child all the time ? A. I seen her when she started; yes. Q. And you saw her when she fell? A. I see her when she fell. Q. Wasn’t your eye on her all the time from the time She started from the mud gutter until she fell across the track? A. Yes; I rung the gong, and I thought she would stop.”

In the face of such testimony, it is difficult to conceive how the appellant can seriously urge that such a case was presented as made it the duty of the learned trial judge to dismiss the complaint.

The learned counsel for the appellant contends that the cases of Fenton v. Second Ave. Railroad Co., 126 N. Y. 625; 36 St. Rep. 385, and of Dorman v. Broadway Railroad Co. 117 N. Y. 655; 27 St. Rep. 841, support his contention. W'e cannot agree with him, as the circumstances in those cases materially differed from the case now before us. In the Dorman Case the boy was ten years old, and he fell two feet in front of the car horses, while attempting to run across the track on a dark night, and the driver was unaware of his approach until he fell on the track. In the Fenton Gase the boy was nearly ten years old, and was not seen by the car drivers until he. fell on the track, and it was held that the boy’s death was due to his own negligence. In the present case the child was but 6¿ years old, and she was seen approaching the track by the motorman in ample time for him to have slackened the speed of his car so as to have avoided .injuring her ; and in the case of so young a child as this one was the motorman was bound to exercise a greater degree of caution than in the case of an adult, or of a young person of more mature years.

At folio 134, the following question was put to the witness fSTorkus : Q. Say that a trolley car is going as fast as eight miles an hour along Third avenue between Sixteenth street and Fifteenth street, going north, within what distance could you stop that car? (Objected to as incompetent, irrelevant, and immaterial. Objection overruled, and defendant excepts.) ” We fail to see why the question was objectionable. The witness had wbrked as a motorman for defendant about a year, was familiar with the locality of the accident, was there shortly after it occurred, and examined the track, and testified “ that he had occasion to stop the car suddenly often, very often.” He was competent, as an expert to answer the question put to him, and it was material for plaintiff to show, if he could, that the motorman of the car in question was not vigilant in promptly stopping his car

After the charge to the jury, the learned counsel for the appellant requested the court to charge: “ That if the evidence leaves the jury in doubt as to whether the plaintiff’s child was injured through negligence on the part of the motorman, the defendant is entitled to the benefit of that doubt, and their verdict must be for the defendant,”—to which the court responded: “ I decline so to instruct the jury. That is not the rule in a civil case. The rule is that the plaintiff is bound to make out his case, by a fair preponderance of evidence, to the satisfaction of the jury, and not beyond a reasonable doubt. That is the rule in a criminal case," —to which the defendant’s counsel excepted. We think that the learned trial judge was correct in his ruling, and it is amply sustained by authority. Indemnity Co. v. Gleason, 7 Abb. N. C. 334, 352; Seybolt v. N. Y., L. E. & W. R. R. Co., 95 N. Y. 568. In this latter case -the court, per Chief Justice Ruger, says, at page 569 : “We are not aware of any rule applicable to the trial of issues of fact in civil actions which requires a party upon whom the burden of proof rests to establish a case free from reasonable doubt. In criminal cases, the law, out of tender regard for the rights of accused persons, and the presumption of innocence which always attaches to persons in that situation, gives to the defendant the benefit of any reasonable doubt existing as to his guilt; but in civil actions, unless the issue involves the commission óf a crime by some of the parties thereto, the application of such a rule is, we think, unauthorized by the law of evidence. * * * The rule is concisely stated in 3 Gfreenleaf’s Evidence (section 29) as follows: ‘ A distinction is to be noted between civil and criminal cases in respect to the degree or quantity of evidence necessary to justify the jury in finding their verdict for the government. In civil cases their duty is to weigh the evidence carefully, and to find for the party in whose favor the- evidence preponderates, although it be not free from reasonable doubt. But in criminal cases the party accused is entitled to the benefit of the legal presumption in favor of innocence, which, in doubtful cases, is always sufficient to turn the scale in his favor.’ ”

In the request made by appellant’s counsel it will be noticed that it does not apply to a “reasonable doubt,” but merely to “ doubt.”

The court was further asked to charge the jury “ that if they believed the testimony of the witness Warncke that they should render a verdict for the defendant,” and exception was taken to the refusal so to charge. The exception was not well taken, for the reason that it precluded the jury from construing the testimony in question, and determining what particular facts it did establish. Dolan v. D. & H. C. Co., 71 N. Y. 285; McGrath v. Met. L. Ins. Co. 6 St. Rep. 376; Gerding v. Haskin, 2 Misc. Rep. 172; 49 St. Rep. 626.

Exception was also taken to the refusal to charge “that the plaintiff was non sui juris, incapable of appreciating orguarding against the danger incident to crossing a street on which surface cars were operated; and it therefore became the duty of the father and mother to use reasonable care to prevent her going unattended on such a street.” This request was properly refused. The learned trial judge had already fully charged the law on this question, and had left it for the jury to determine if this child was sui juris or non sui juris, and no exception was taken thereto. It had been shown that the child was 6|- years old, and had been accustomed to go to school unattended since the previous September, and had been allowed to play out in the street in front of her home, where there was a line of trolley cars in operation. We think this was sufficient to make it a question for the jury to determine whether the child was or was not sui juris. Mangam v. Brooklyn R. R. Co., 38 N. Y. 455.

Exception was also taken to the refusal to charge the following request: “If the plaintiff’s child fell upon the track within twenty feet or less of the approaching car, and the motorman turned off his power, put on his brake as soon as he could, and as hard as he could, and stopped the car, the defendant is not liable.” This request was improper, in that it limited the man’s efforts to stop the car to the moment when the child fell on the track. The motorman had admitted, as above stated, that he saw the child start to cross Third avenue, and it was his duty, as he saw her then approaching his track, to decrease bis speed and get his car under control, and not to wait to do so until she had fallen on the track in front of him.

The foregoing constitute all the exceptions that were taken on the trial to which our attention is called in the brief of the learned counsel for the appellant, and, as we find that none of them were well taken, we are of the opinion that the judgment and order denying the motion for a new trial should be affirmed, with costs.


text:
    Anna Tholen, by Guardian ad litem, etc., Resp’t, v. Brooklyn City Railroad Company, App’lt

      (Brooklyn City Gourt, General Term,

      Mled November 26, 1894.)

    Appeal from a judgment entered on a verdict in favor of plaintiff.

      Morris & Whitehouse, for app’lt; Shorter & Rurth (Thos. B. Pearsall, of counsel), for resp’t.
   Osborne, J.

This action was brought to recover damages for injuries sustained by the above-named infant through the negligence of the defendant, which resulted in the amputation of both of her legs. Plaintiff obtained a verdict, and this appeal is taken from the judgment entered thereon and the order denying the motion for a new trial. Another action had been previously commenced by John S. Tholen, the father of the infant, against this defendant, for loss of services of his child on account of the injuries sustained by her, and that case was tried previous to this one. The plaintiff obtained a verdict, an appeal was taken therefrom, and an opinion was handed down at this general term, affirming that judgment. 63 St. Bep. 269. The testimony in both cases is substantially the same; indeed, we might safely say that the testimony of the motorman of the car in question in the present case tended more strongly to convict him of negligence than that given in the father’s case. The grounds of appeal in this case are the same as those in the father’s case, and consist of exceptions to denials of the motions to dismiss, made at the close of the plaintiff’s case, and after all the testimony was in, and also to certain refusals of the learned trial judge to charge as requested by defendant’s counsel. Mo claim is made that the damages are excessive. We have carefully gone over all those exceptions in the opinion handed down in the father’s case, and for the reasons stated in that opinion we have decided that none of the said exceptions were well taken.

It follows, therefore, that the judgment and order appealed from herein must be affirmed, with costs.


author: Follett, J. Van Brunt, P. J.

text:
    William Ottman & Company et al., App’lts, v. Marvelle W. Cooper et al., Resp’ts.

      {Supreme Court, General Term, First Department,

      Fled November 16, 1894.)

    1. Fraudulent conveyance—Mortgage.
    A trust mortgage, executed without the knowledge of the beneficiary to secure a bona fide indebtedness to him, and authorizing the trustee to take possession of the property and, on satisfaction of the secured claim, to pay over the surplus to the mortgagor, is not fraudulent as to the other creditors, in the absence of the mortgagor’s insolvency.
    8. Same—Insolvency.
    A refusal to find the mortgagor insolvent is not error, where an execution has not been returned unsatisfied, or the sheriff been unable to find property subject to execution.
    Appeal from a judgment dismissing the complaint on the merits.
    This action was brought by three judgment creditors of James C. Matthews to set aside as fraudulent and void as against creditors three chattel mortgages executed October 14, 1891, by the defendant Matthews to one Albert P. Sturtevant individually, one to him as surviving partner of A. P. & J. D. Sturtevant, and, third, a trust chattel mortgage executed by Matthews at the same date to Marvelle W. Cooper and William Waddell, as trustees. March 10, 1886, A. P. & J. D. Sturtevant leased the premises known as the “ Sturtevant House ” to James C. Matthews for a term beginning October 1, 1886, and ending May 1, 1892, with a covenant that the lease should be renewed until the 1st day of May, 1895, at the annual rent of $54,000, and the lessee entered into occupation of the demised premises under the lease. July 1,1888, John D. Sturtevant, one of the firm of A. P. & J. D. Sturtevant, died, leaving Albert P. Sturtevant the sole surviving partner. On the 14th of October, 1891, James C. Matthews was indebted to Albert P. Sturtevant, as surviving partner, on 14 promissory notes given by Matthews, and payable to the order of A. P. & J. D. Sturtevant amounting to $41,871.97, to secure the payment of which said Matthews mortgaged to said Albert P. Sturtevant “all the goods, chattels, property, effects of every name and nature of the party of the first part, now owned or upon the premises known as the 1 Sturtevant House,’ situate upon Broadway, between Twenty-Eighth and Twenty-Ninth streets, in the city of New York, consisting of all furniture, beds, washstands, bureaus, chairs, carpets, cooking utensils, bar fixtures, tables, crockery, silver and plated ware, mattresses, pillows, bed linen, table linen, and all property more particularly mentioned and described in the schedule hereto annexed, which is made a part hereof.” On the same date said Matthews was indebted to Albert P. Sturtevant individually on four promissory notes amounting to $22,700, and Sturtevant was also liable as an accommodation indorser for said Matthews.on two promissory notes amounting to $13,000, which were then under discount. On the same date said Matthews, to secure the payment of said notes to said Sturtevant, and also to secure him against his liability as an indorser, mortgaged to said Sturtevant the property described in the first mortgage. On the same date said Matthews executed a chattel mortgage to Marvelle W. Cooper and William Waddell, as trustees, in which it was recited that he was indebted to Albert P. Sturtevant, individually and as a surviving partner, in the sum of about $60,000, to secure the payment of which this trust is created. This mortgage embraces the mortgagor’s leasehold interest, accounts', claims of every nature, promissory notes, drafts, checks, choses in action, bonds, mortgages, stocks, securities, wines, liquors, mineral water, owned by and in the possession of the mortgagor, and also the chattels described in the first two mortgages. The trustees in this mortgage were authorized to take possession of the hotel, and run it, and out of the proceeds pay the expenses of management, and from the net income to pay off and discharge the indebtedness of the mortgagor to Albert P. Sturtevant, and, after the payment of such indebtedness and expenses, and a reasonable compensation to the trustees, to return the remainder to the mortgagor. The first two mortgages were duly filed in the office of the register of the county of New York on the 15th of October, 1891, but whether the mortgage of the trustees was filed, does not appear.
    The court found the foregoing facts, and also that the two mortgages were executed by Matthews and received by Sturtevant in good faith for the purpose of securing just debts due from the mortgagor to the mortgagee. It was also found that at the date of the execution of the trust agreement Matthews was sick, and unable to attend to his business, and that the trust mortgage was executed in good faith, without any intent to defraud creditors, and for the purpose of further securing said Sturtevant, as stated in the trust mortgage. It was also found that the three mortgages were all executed and delivered on the same date, but it was found that Sturtevant was not present when the trust agreement was executed, and that there was no evidence that he knew, prior to the execution thereof, that Matthews contemplated making it Immediately after the execution of these mortgages the trustees took possession of the Sturtevant House, and managed it; Matthews, on the next day, going into the country for his health, where he remained until about November 10, 1891. On the 11th of November, Matthews demanded that the trustees should surrender the hotel and the mortgaged property, and on the 13th of that month he brought an action against the trustees and Sturtevant to reform the three mortgages by inserting in Sturtevant’s mortgages that they were to be payable in one year instead of on demand, and by inserting a clause in the trust agreement that the property and business were to be turned over to the mortgagor on demand. In that action the plaintiffs in this were made parties defendant, and also one other creditor. It was tried, and resulted in a judgment dismissing the complaint on the merits, with costs. On the 11th of November, 1891, the plaintiffs in this action recovered three several judgments against James C. Matthews upon the service of summons and complaints and offers to compromise, served by Matthews and accepted by the plaintiffs, upon which executions were issued, and were outstanding in the hands of the sheriff when this action was begun, on the 10th of December, 1891. The debts on which these judgments’ were recovered were contracted before the mortgages were executed, and Matthews was also indebted to others wh en the mortgages were given, and when they were executed Matthews owned property not described in them. March 14, 1893, Albert P. Sturtevant, a resident citizen of the state of Connecticut, died, leaving a last will and testament, which was duly probated in said state March 23, 1893, and letters testamentary were duly issued thereon to Edwin B. Studley, Marvelle W. Cooper, Charles P. Sturtevant, Allen Tenney, and Arthur H. Brewer, and on June 13, 1893, ancillary letters were duly issued to Edwin B. Studley by the surrogate’s court of the city and county of New York, and June 19, 1893, this action was revived and continued against said ancillary executor.

      Joseph Fettretch, for app’lts; George S. Hastings, for resp’t Cooper ; Flihu Root, for resp't Studley.
   Follett, J.

The defendants Matthews and Waddell have not answered in this action, evidently desiring that the plaintiffs should prevail. This is a race between creditors, at the outset of which the debtor favored his landlord and indorser, but before the close he attempted, in the interest of other creditors,—■ these plaintiffs,— to destroy the securities which he had voluntarily given, on the ground that they were fraudulent; but on the trial he testified in behalf of the plaintiffs, and when confronted with his notes and the indorsements which the mortgages were given to secure he admitted that all of them were just and honest, and no attempt was made to show that they were not. It is apparent that Matthews gave these mortgages with an honest intent to secure to his creditor his just demands, but that for some reason, within 30 days, he came to regret his act, and attempted, by permitting other ereditors to charge him with fraud, which he failed to deny, to substitute them in the place of his landlord. The court found that the mortgages were given and received to secure honest debts, without any intent of the part of the mortgagor or mortgagees to hinder, delay, or defraud creditors. No other conclusion was possible under the evidence. These mortgages were not fraudulent in fact, nor were they fraudulent in law. Matthews had a legal right to secure Mr. Sturtevant; by chattel mortgages on his property, which he did. The court finds that Sturtevant did not know that the trust mortgage was to be executed until after it had been executed and delivered. It is apparent that Matthews, being in poor health, and desiring to put some persons in charge of his property, which he was about to leave, devised, through his attorney, this scheme of giving to trustees a mortgage upon the property so as to give them a right to possession and power to manage. The court refused to find that Matthews was insolvent when the mortgages were given, or that he was insolvent at the date of the trial, and he testified that he had property not included in the mortgage. It does not appear that an execution had been returned unsatisfied against him, or that the sheriff had been unable to find property subject to execution, and we think the refusal of the court to find insolvency was justified by the evidence.

Had Sturtevant participated in this scheme, a more serious question might have arisen; but he did not. That no ground was established for setting aside the two mortgages given to Sturtevant is apparent. The exact situation in respect to the trust agreement is not shown. Whether the defending trustee was in possession of the property and engaged in running the house at the time of the trial is not disclosed by the record. To set aside this mortgage without setting aside those given to Sturtevant would avail the plaintiffs nothing, for the trust mortgage in no way increases the burden upon the property, as the executor of the mortgagee has the right to close his mortgages at any time ; and when the amount secured by them is paid, the third falls. Again, the trustee, having acted in good faith and without any intent to hinder, delay, or defraud the mortgagor’s creditors, is entitled to be protected.

The judgment should be affirmed, with costs.

Parker, J., concurs.

Van Brunt, P. J.

(dissenting).—I cannot concur in the conclusion arrived at by Mr. Justice Pollett that the judgment in this action in all its parts should be affirmed. It is undoubtedly true that no ground was established for setting aside the two mortgages given to Sturtevant. But in respect to the trust agreement an entirely different question arises. It is true that such agreement appears to have been executed at the same time with the mortgages. But the validity of the mortgages cannot validate an agreement which, as to the creditors of Matthews, was void upon its face. It might very well be urged that, the mortgages and trust agreement having been executed at the same time, and the trust agreement being fraudulent, the mortgages must therefore fall with it. But the rule to which attention has been called does not apply to mere fraud in law, but only to those cases in which a series of papers are executed at the same time, and a fraudulent intent in fact pervades the whole transaction. The mortgages to Sturtevant was executed in good faith, to secure to him the amount of his indebtedness. The trust agreement was also executed to add to that security, but without Sturtevant’s knowledge or consent. Such trust agreement was not one which could prevail, or give any title to the trustees therein named as against the creditors of Matthews. Such being the case, Matthews’ creditors had the right to avoid the agreement. The plaintiffs in this action were creditors of Matthews at the time of the execution of the agreement, and they have brought this action to set it aside as an impediment to their securing the payment of their debts. It is not necessary' to discuss the nature of the agreement. It is apparent that it is such an agreement as an insolvent debtor cannot make, and that trustees appointed thereunder cannot hold the property of such debtor as against his creditors who have filed their bills to enforce judgments which they have obtained against the creator of the trust.

It is urged in the opinion referred to that it does not appear that an execution has been returned unsatisfied against Matthews, or that the sheriff has been unable to find property subject to execution, and that, therefore, the refusal of the court to find insolvency was justified by the evidence. It is not necessary that a judgment creditor should have an execution returned unsatisfied in order that illegal incumbrances upon the part of the judgment debtor should be set aside. The creditor may maintain his bill in aid of an execution still in the sheriff’s hands. If Matthews, the creator of the trust, at the time of the bringing of this action was not insolvent, it seems to be strange that these judgments should be standing against him, and executions certainly unsatisfied. There is no proof whatever that Matthews had property out of which these executions could be satisfied. I do not understand it to be necessary for a judgment creditor, in order to attack the fraudulent transfer of the property of his debtor, to show that he has an execution returned unsatisfied, or that the debtor had no property. The fact that the creditor has a judgment, and that he has an execution in the hands of the sheriff, unsatisfied, gives him standing in court to set aside clouds upon the property of the judgment debtor, in order that his execution may attach. Under these circumstances it seems to me that it was error to sustain this trust agreement, and to prevent these creditors from reaching the equity in the property of the judgment debtor covered by the mortgages and trust agreement in question. I think the judgment should be modified by declaring void the trust agreement, and setting the same aside so far as it affects the plaintiffs in this action.


author: Yan Brunt, P. J.

text:
    Charles E. Maxwell, App’lt, v. Nathan Hofheimer, App’lt.

      (Supreme Court, General Term, First Department,

      Filed November 16, 1894.)

    Evidence—Books.
    Secondary evidence of the contents of books, which are beyond the jurisdiction of the court, may be given.
    Appeal from a judgment on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Julius Goldman, for app’lt; John A. Mapes, for resp’t.
   Yan Brunt, P. J.

This action was brought to recover damages for a breach of contract for the sale of whisky. The complaint alleges that on or about the 16th of April, 1890, the defendant contracted and agreed to deliver to the plaintiff 50 barrels of rye whisky, which the defendant represented to be of a certain well-known brand, known as the J. Gr. Mattingly & Sons brand of whiskies of June, 1889; the same being distilled from ninety per cent, rye and ten per cent, malt, and which fifty barrels were then in the storage warehouse of said Mattingly & Sons, at Louisville, Ky. The complaint further alleged that on the 24th of June, 1890, the defendant contracted and agreed to sell to the plaintiff 150 barrells of whisky under similar representations as to quality, etc.; and further, that the plaintiff paid for said whisky, having had no opportunity of examining the same or of learning the truth or falsity of such representation. The complaint further alleged that such representations were false, and that the plaintiff had been damaged thereby. Upon the trial of the case it was claimed upon the part of the plaintiff that the barrels of whisky were not branded as called for by the representation; but the court "refused to submit any such question to the jury, and only submitted the question as to whether the whiskey was of the quality represented, the defendant having conceded that he agreed to sell whisky of the quality alleged. Ho exceptions whatever were taken to the charge upon the part of the appellant, and, the jury having rendered a verdict in favor of the plaintiff, a motion was made for a new trial upon the judge’s minutes, and denied, and from the judgment and order thereupon entered this appeal is taken.

The only question presented upon this record is as to whether there was any evidence to go to the jury upon the falsity of the representations as to the quality of this whisky. At the conclusion of the evidence it seems to have been conceded by both parties that it was proper to submit such question to the jury, as no motion was made either to dismiss the complaint or for the direction of a verdict. It is urged upon the part of the appellant that the evidence established that the whisky was of the quality which the defendant agreed to deliver, and he apparently bases this assertion upon the testimony of Mr. Preston D. Mattingly, the distiller of the company, who testified that from actual knowledge there was rye whisky made at said distillery in said months of May and June, 1889, containing ninety per cent, of rye and ten per cent, malt; and that that was about the usual way in which rye whisky was made at that distillery. But .there is not a particle of evidence upon the part of Mattingly that the whisky in question was so manufactured. All that he testified to is that there was rye whisky, containing the ingredients called for by the representation, made at the distillery in the months of May and June, 1889. But he is entirely silent as to how much other rye whisky had been distilled in those months which did not come up to this standard. There was other evidence (some of which was slight, it is true), which tended to contradict Mr. Mattingly very conclusively, and to show that the whisky contained in the barrels delivered to the plaintiff was not of the quality called for by his contract.

It is urged that it was error to admit the testimony of the internal revenue storekeeper, upon the ground that the original books were the best evidence, and he should not have been allowed to testify orally. The witness testified that his residence and occupation during the months of May and June, 1889, was that of internal revenue storekeeper in charge at Mattingly & Sons’, distillers, Louisville, Ky.; that he had charge of and saw to the malting of the entries on the government books at the Mattingly distillery; that he kept the government book connected with said distillery, and made the entries therein as provided by the laws of the United States during the months above mentioned; that he entered in said book the percentages of corn, rye and malt used in the manufacture of whisky at that distillery, and also the serial numbers of the barrels placed in the warehouse filled with the whisky; that he made entries of the time the material went into the mash and the time it was drawn off into the receiving system and barreled, which was the sixth day from the day it was mashed, including the day it went into the mash. He further testified that he superintended the making of the entries in said book, and saw the whisky was entered into the barrels of the mash referred to, and knew the entries made in the books to be correct; that the collector of internal revenue of the-district now has charge of the books so kept by him in which such matters were entered, and that he had positively refused to allow him to inspect such books. He further testified that by reference to the hooks of the distillery, which were duplicates of the government book, made on government forms, and inspected and checked by government officers, he was able to state the date of manufacture of whisky contained in barrels bearing such serial numbers, and also from what material the said whisky was manufactured. The evidence in this respect was objected to upon the ground that the books were the best evidence, which objection was overruled, and an exception taken. The witness then stated, by reference to the books mentioned,—checked duplicates of the books kept by him,—he found that the whisky contained in the barrels in question entered into the mash on the 24th and 25th of May, 1889. On the 24th of May, 1889, the proportion of grains was thirty per cent, corn, sixty per cent, rye, and- ten per cent, malt; and on the following day, the 25th of May, the proportion was corn, forty-five per cent.; rye, forty-five per cent., and malt, ten per cent. This evidence was objected to on the ground that it did not show that be compared any of the entries in the book, and that the books were the best evidence; and furthermore, that the witness had testified that he had been refused access to the books of the collector. This objection was overruled, and an exception taken. The question presented is whether, under the circumstances disclosed by the evidence of the witness, it was competent for him to give the evidence which he did. It is urged that the plaintiff was bound to produce the best evidence, namely, the books in question. But as the books were not the subject-matter of the action, the rule which is invoked does not apply. And as such books are beyond the jusisdiction of this court, and there is no process known to the court which could compel their production, the plaintiff clearly had the right to give secondary evidence in regard to their contents by a person who knew of the correctness of the entries therein, and who was able to testify as to the nature of those entries. It is true that the witness stated that he could not testify without reference to the duplicate set of books, but upon a reference to the duplicate books he did testify as to the facts. Under such circumstances there was no valid objection to such testimony because of the nonproduction of books which were beyond the jurisdiction of the court. If any other rule were to prevail, it would be impossible to conduct litigation and to produce evidence contained in collateral papers which are not directly involved in the subject-matter of the action. In respect to such collateral papers, the rule has never been as stringent as it is in regard to written instruments which form the basis of an action or defense, as the case may be. We think, therefore, that no error was committed in allowing the witness to testify after having refreshed his recollection by the distiller’s own books.

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

Follett, J. —I concur, but it seems to me that the strongest point is that, the books from which A. R Morris testified were those kept in the distillery in which defendant had a controlling interest, as he testifies at folio 166.

Parker, J., concurs.


author: Follett, J.

text:
    In the Matter of the Application of the Attorney-General, Resp’t, for Leave to Commence an Action to Annul the Charter of The Central Stamping Company, App’lt.

      (jSupreme Court, General lerm, First Department,

      Filed November 16, 1894.)

    1. COEPOBATIONS—DISSOLUTION—LEAVE TO SUE.
    An application for leave to sue to annul a charter must point out the particular acts done.
    2. Same—Obdee.
    The order, in such cases, should specify the grounds on which the action is to be brought.
    Appeal from an order granting an application for leave to sue.

      Howard Mansfield, for app’lt; Louis Marshall, for resp’t.
   Follett, J.

Section 1798 of the Code of Civil Procedure provides that, upon leave being granted by the court, the attorney general may bring an action to vacate the charter or annul the existence of a corporation, upon the ground that it has either— “(1) Offended against any provision of an act, by or under which it was created, altered, or removed, or an act amending the same, and applicable to the corporation ; or (2) violated any provision of law, whereby it has forfeited its charter, or become liable to be ■dissolved, by the abuse of its powers ; or (3) forfeited its privileges or franchises, by a failure to exercise its powers ; or (4) done or omitted any act, which amounts to a surrender of its corporate rights, privileges, and franchises ; or (5) exercised a privilege or franchise not conferred upon it by law.”

When this matter was first before this court, it was held that leave should not be granted to bring an action to annul the charter of a corporation without the written application of the attorney general to the court, stating that, in his opinion, the action could and ought to be maintained for reasons given. 79 Hun, 369, 61 St. Rep. 437. The matter now comes before the court on a petition of the attorney general, which states: “After a full and careful consideration of the affidavits, contracts, and other exhibits so presented before your petitioner, hereinbefore referred to, of which ■copies are hereto annexed, your petitioner has arrived at the determination that the public interests require that an action should be brought by him, in the name of the people of the state of New York to annul the charter of the Central Stamping Company, for the reason that the said Central Stamping Company has exceeded .and abused its powers, to the detriment of the public; has attempted to exercise powers and privileges not authorized by its ■charter; and has violated various provisions of the law under which it was organized, and the laws of the state binding upon it; and the public interests required that such an action should be ■commenced, and I believe such action can be maintained.”

This, we think, is too indefinite to justify the court in authorizing an action to be brought. It is asserted that the corporation “has exceeded and abused its powers, to the detriment of the public but what powers it has exceeded and abused, or what it has -done that it ought not to have done, is not stated m the petition. It is also asserted that it “has attempted to exercise powers and privileges not authorized by its charter, and has violated various provisions of the law under which it was organized, and the laws of the state binding upon it” It does not state what powers and privileges the corporation has attempted to exercise, not authorized by its charter, nor what statutes it has violated. Before authority should be given to bring an action to vacate the charter or to annul the existence of a corporation, the attorney general should point out in his application to the court the particular act or acts done or omitted which, in his judgment, are sufficient to justify the bringing of such an action, and should allege in his petition wherein the corporation has violated the laws of the state, —what it has done or omitted,—which allegations should be supported by sufficient evidence to render it probable that a cause of action exists. The fact that such an action has been begun is usually -destructive of the credit and business of the corporation assailed, and authority to commence such an action should not be lightly given. Authority will not be granted, as a matter of course, on the application of the attorney general.

It may be said that, if the court will look into the affidavits annexed to this petition, sufficient grounds for an action will be found. We have looked into the record and find several grounds stated and shadowed forth, some of which the court may deem sufficient, and others quite insufficient; but upon which ground or grounds the attorney general proposes to found his action is nowhere disclosed, and, under the general order granted, an action may be brought upon any one or all of the grounds stated or shadowed forth, or upon grounds not disclosed in the affidavits. By such an order the court abandons all control over the action, and it becomes possible to bring one based on grounds not disclosed in the moving papers, and which the court would not have held to be sufficient. The order in such a case should specify the grounds on which the action is to be brough. The order should be reversed, with $10 costs and disbursements, and the motion denied, with $10 costs and disbursements, but without prejudice to the right of the attorney general, on payment of costs, to apply again for leave to bring an action,

All concur.


text:
    The People ex rel. Peter Nechameus, App’lt, v. Warden of City Prison, Resp’t.

      (Supreme Court, General Term, First Depa/rtment,

      Filed November 16, 1894.)

    1. Constitutional law—Plumbers.
    Chap. 602 of 1892, requiring master plumbers to procure a certificate, is constitutional.
    2. Same
    The fact that a statute has been oppressively or corruptly administered, so that results have been produced violative of the spirit of the Constitu ■ tian, is no reason for holding the act to be unconstitutional.
    3. Same—Local.
    Said act is not a local statute within § 16, art. 3 of Constitution.
    Appeal from an order dismissing a writ of habeas corpus and remanding the relator into the custody of the warden.

      Roger Foster, for app’lt; John D. Lindsay, for resp’t.
   Follett, J.

The relator has been a resident of the city of New York for ten years past, and during the five years immediately preceding his arrest he transacted business in said city as a master plumber, and for the preceding five years he was employed thereat as a journeyman plumber. On the 24th of June, 1894, he was arrested upon a warrant issued by a police justice of the city of New York for transacting business as a master plumber in that city without having obtained a certificate authorizing him to engage in that business, as required by chapter 602 of the Laws of 1892. The relator concedes that he was engaged in the business of a master plumber without having been examined and found qualified to engage in such business, and without having a certificate authorizing him to conduct such business, as provided by said act. He insists that his imprisonment is illegal because the act under which he is imprisoned is violation of the first section of article 14 of the Constitution of the United States, which provides: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”

And because the statute is violative of the sixth section of the first article of the Constitution of this state, which provides: “ That no person shall be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

By chapter 602, Laws 1892, an “ examining board of plumbers ” is created in the cities of New York, Brooklyn, and Albany, and an “examining and supervising board of plumbers and plumbing ” in all other cities of the state. By the fourth section of the act, the powers and the duties of such boards are defined: “Sec. 4. The several boards of examiners constituted under this act shall have power and it shall be their duty:

“1. Meetings.—To meet at stated intervals in their respective cities; they shall also meet whenever the board of health of such city, or the mayor thereof, shall in writing request them so to do.
“ 2. Examinations.—To have jurisdiction over and to examine all persons desirous or intending to engage in the trade, business or calling of plumbing as employing plumbers in the city in which such board shall be appointed, with the power of examining all persons applying for certificates of competency as such employing or master plumbers or as inspectors of plumbing, to determine their fitness and qualifications for conducting the business of master plumbers or to act as inspectors of plumbing, and to issue certificates of competency to all such persons who shall have submitted to and passed a satisfactory examination before such board and shall be by it determined to be qualified for conducting the business as employing or master plumbers or competent to act as inspectors of plumbing.
“3. Plumbing Code.—To formulate, in conjunction with the local board of health of the city in which it shall act, except in New York, Brooklyn and Albany, a code of rules regulating the work of plumbing and drainage in such city, including the materials, workmanship and manner of executing such work, and from time to time to add to, amend or alter the same.
“4. Fees.—To charge and collect from each person applying for examination the sum of five dollars for each examination made by said board, and all moneys so collected shall be paid over by the board monthly to the chamberlain or treasurer of such city in which said board shall be appointed.”

The following are the provisions of the fifth and sixth sections of the act, as amended by chapter 66 of the Laws of 1893: “ Sec. 5. Any person desiring or intending to conduct the trade, business or calling of a plumber or of plumbing, in any of the cities of this state as employing or master plumber shall be required to submit to an examination before such board of examiners as to his experience and qualifications in such trade, business or calling; and after the first day of September, eighteen hundred and ninety-three, it shall not be lawful in any city of this state for any person to conduct such trade, business or calling unless he shall have first obtained a certificate of competency from such board of the city in which he conducts, or proposes to conduct, such business.

Sec. 6. On and before the first day of September, eighteen hundred and ninety-three, every employing or master plumber carrying on his trade, business or calling in any of the cities of this state, shall register his name and address at the office of the board of health of the city in which he shall conduct such business under such rules and regulations as the respective boards of health of each of the cities of this state shall respectively prescribe, and thereupon he shall be entitled to receive a certificate of such registration, provided, however, that such employing or master plumber shall, at the time of applying for registration, hold a certificate of competency from an examining board; * * * and after the first day of September, eighteen hundred and ninety-three it shall not be lawful for any person to engage in, or carry on the trade, bussiness or calling of an employing or master plumber in any of the cities of this state unless his name and address shall have been registered as above provided.”

To protect the health of persons inhabiting or frequenting cities, it is necessary to provide for the construction and maintenance of proper systems of drainage. This is a truth universally recogized by all enlightened communities, and it is applied with greater or less success in all cities inhabited by civilized people. Drainage systems cannot be constructed, maintained, and operated unless authorized by statute and controlled by instrumentalities created by law. Laws requiring the drainage of cities and of public and private buildings therein are found in the statutes of all civilized states, by which statutes the principles of sanitary science are sought to be applied to the subject, and the observance of sanitary rules by the citizens compelled. The constitutionality of such statutes, if their requirements are reasonable, is not open to question. But it is urged that the statute under consideration goes further in restraint of the liberty of individual action than is necessary, or than is justified by the constitution. The statute makes no distinction of race, color, creed, or faith, but it is applicable alike to all citizens. Experience has shown that persons having no, or insufficient, knowledge of the principles of sanitary science, and who are without practical experience in their application to the plumbing of buildings and connecting them with sewers, cannot be intrusted to supervise or carry on such work with safety to the health of the occupants of the buildings. The evident object sought to be attained by the statute under consideration is, by instrumentalities created, to ascertain who may safely be intrusted to do the work. The statute does not prevent any person from working as a plumber, either as an apprentice or as a journeyman, when or where or for whom he will, but it simply prohibits a person from engaging in the business of “master plumber”—which term is defined in the statute as denoting a plumber who employs other plumbers—unless the employing plumber first obtains a certificate of his competency from the examining board created by the statute. The sole effect of the statute is to prohibit plumbers from becoming the employers of plumbers without obtaining a certificate that they are skilled in the art of plumbing. It is urged that the statute does not protect the public health, because it fails to prohibit unqualified persons from working as plumbers for any one who may employ them. It is true that generally the statutes of this state, designed to promote the public health, are more restrictive in their scope than the one under consideration. For example, the statutes regulating the practice of dentistry and of pharmacy prohibit unlicensed persons from engaging in either profession on their own account, but permit such persons to be employed by others who are licensed as dentists or as pharmaceutists. The fact that the statute under which this case arises is not as restrictive as it might well have been, does not render it unconstitutional, or open to objection on grounds of public policy, provided the restriction imposed is reasonable, and is likely to promote the welfare of the public. The plumbing of buildings is so generally done by persons who have employes, and who furnish materials, that practically the business is confined to them ; and this statute prohibiting persons from engaging in the business of employing other plumbers without a license in effect provides that all plumbing shall be done by or under the supervision or control of a competent plumber, which seems to us to be a reasonable provision ; and we are unable to see how it tends in any way to create a monopoly, for every person possessing the necessary qualifications may obtain a license, and engage in the business. It is alleged in the petition for the writ, and is not denied by the return, that: “The said examining board of plumbers in this city and county which has been appointed in pursuance of the provision of said bill has refused to grant certificates of competency to many competent plumbers who have passed satisfactory examinations. The said board has, in granting such certificates of competency, made discriminations against race and religion, and has refused to grant certificates of competency to any Hebrew engaged in the trade as a master or employing plumber in this state, unless he shall have joined a certain trade union by the name of the Master Plumbers’ Association, which exists in this city, and which existed previously to the passage of said bill, of which your petitioner is not a member. The said board of examining plumbers has refused to grant certificates of competency to any persons not members of said Master Plumbers’ Association, unless said persons first obtain recommendations from some person of political influence.”

A less general allegation that the statute has been oppressively executed would have been more convincing; for example, an allegation that the relator, being a qualified and experienced plumber, on a date mentioned had applied to the board to be examined ; that an examination had been refused, or that, after an examination, a license had been refused on insufficient grounds. However, the undenied general allegation contained in the petitirn, or an undenied specific allegation, could have no effect in determining the constitutionality of the statute in question. The fact that a statute has been oppressively or corruptly administered, so that results have been produced violative of the spirit of the constitution, is no reason for holding the act to be unconstitutional. If the court had before it a particular result, violative of the constitution or of its spirit, effected by the maladministration of the statute, a remedy could easily be applied without nullifyiny the statute. If the officers who have been appointed to administer the statute have corruptly or willfully administered it in the manner alleged, there is ample power in this court to redress the wrong of any individual, and, in the criminal courts, to punish the officers who have violated their duty.

It is urged that the act violates the sixteenth section of the third article of the constitution of this state, which provides: “ Sec. 16. Ho private or local bill, which may be passed by the legislature, shall embrace more than one subject, and that shall be expressed in the title.”

This statute relates to all of the cities of this state, and it is not a local one. Ferguson v. Ross, 126 N. Y. 459; 37 St. Rep. 836; In re Church, 92 N. Y. 1.

The order should be affirmed, with costs.

All concur.


author:
Follett, J.
      Van Brunt, P. J.

text:
    Daniel L. G. Frobisher, Resp’t, v. Fifth Avenue Transportation Company, Limited, App’lt.

      (<Supreme Court, General Term, First Department,

      Filed November 16, 1894.)

    1. Negligence—Contributory.
    It is not negligence, as matter of law, for a passenger, after signaling the driver to stop, to attempt to enter the stage while it is moving very slowly.
    2. Same—City ordinance.
    A city ordinance, which forbids stages from stopping at the intersection of streets, is no defense to an action for injury to a passenger, who fell and was dragged while attempting to enter a moving stage.
    3. Same—Question foe jury.
    Where there is evidence that both open and closed steps are used on stages and that closed steps are safer, the question whether it is negligence to use open instead of closed steps, is one for the jury.
    4. Damages—Special.
    Under an allegation sufficient to give defendant notice, loss in business, resulting from personal injuries, may be recovered as special damages.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      William Irwin, for app’lt; J. Tredwell Richards, for resp't.
   Follett, J.

This action was brought to recover damages arising from a personal injury caused, it is alleged, by the negligence of the defendant and of its servants. The defendant did not move for a nonsuit, or that a verdict be directed in its favor, and the only questions presented are those raised by the exceptions taken to the admission and exclusion of evidence, to the charge, and to the refusals to charge. On the 14th of October, 1889, the plaintiff, while attempting to enter one of defendant’s stages, fell from the step, breaking the radius of his left arm, near the wrist, and dislocating his left shoulder.- The step was an open one, having no back or riser; and it is alleged that the defendant was negligent in not using one with a riser or back, which would have rendered it impossible for the foot of a passenger to slip forward from and beyond the step. It is also alleged that the driver was negligent in not coming to a full stop when the plaintiff attempted to enter the stage, in starting suddenly while he was on the step, and in dragging him so far after he fell. The stage was going uptown. The plaintiff was standing on the west side of Fifth avenue, near the corner of Twenty-third street. He testified that he signaled the driver that he wished to ride, who recognized him, and pulled up his horses, but did not come to a full stop. He said that, when he attempted to enter the stage, its motion was hardly perceptible; that he took hold of the brace or handle at the right of the door with his right hand, and was standing on the step, when the stage ‘‘started up with a big jerk,” throwing him violently backward; that his left foot slipped over the step, and caught; that he fell, and was dragged at least 75 feet, and over the tracks of th e Twenty -Third Street Eailroad. The driver of the stage had died before the trial, and the plaintiff’s evidence as to the manner in which he attempted to enter the stage was not contradicted. One of the defendant’s employes testified that, when the stage was between the south crossing at Twenty-Third street and the track of the Twenty-Tbird Street Eailroad, the plaintiff ran forward, and got on the step,' and was caught by his foot, and dragged about 10 feet; that, at the time, the stage was in motion, the driver was walking his horses across Twenty-Third street He did not know whether the plaintiff had signaled the driver lower down. Frost, a policeman, called by the defendant, testified that he saw the plaintiff get on the step of the stage when it was south of the Twenty-Third street crossing. “ He got on below that. I had seen him getting on. I saw him step on the stage after it started. He pulled on the door until he put his foot through; slipped through. The stage was in motion.” This witness says that the plaintiff was dragged 15 or 20 feet.

The evidence that the plaintiff attempted to enter the stage after having signaled the driver to stop, and before it reached the crossing, while it was moving slowly, is quite sufficient to warrant the jury in finding those facts. The defendant insists that the plaintiff was negligent, as a matter of law, in attempting to enter the stage while it was in motion, and that the court erred in refusing so to charge. If it be true, as testified by the plaintiff, that the driver had nearly stopped the stage, and that its motion was hardly perceptible, we do not think that, under such circumstances, it could be held as a matter of law that the plaintiff was guilty of contributory negligence in attempting to enter the’stage. There was evidence that the stages and coaches used by others have steps with risers or backs, protecting the passengers from the danger of slipping forward from the step. Whether the defendant was negligent in the use of a step without a riser or back, and whether its driver was negligent in not stopping the stage so as to permit the plaintiff to enter, and in starting it suddenly when he was on the step, were issues fairly submitted to the jury by the court in its charge, and they found for the plaintiff.

The defendant asked the court to charge that it was not negligence on the part of the defendant or its servants not to stop the stage in Twenty-third street, where it crosses Fifth avenue. The court refused to express any opinion on that question. There is no evidence tending to show that the plaintiff asked the driver to stop the stage after it had passed the south line of Twenty-third street The only complaint made in respect to the driver’s not stopping the stage before crossing Twenty-third street is that, after the plaintiff was caught, it should have been stopped before dragging him across the tracks of the Twenty-third street railroad. It was shown that an ordinance of the city forbids that a stage be stopped at the intersection of streets, so as to obstruct passage on any sidewalk or in the street. This ordinance, however, was not intended to apply in case it should be necessary to stop in order to save life, prevent a collision, or the infliction of an injury to persons.

The defendant requested the court to charge: (9) That there is no proof that the step of the stage, or the stage itself, was in any way defective.” “The Court: You have the evidence in regard to what might have been done with known appliances with respect to the step. (Defendant excepts.)”

By this request the court was asked to rule as a question of law that there was no evidence that the stage or its step was in any way defective. It was not asserted by the plaintiff that any part of the stage was defective except the step. The plaintiff’s foot slipped over and beyond the step, and was caught, and he fell, and was dragged by the moving stage, and was injured. Undoubtedly, the mere happening of the accident did not raise a presumption that the step was defectively constructed. But there was more evidence. Mulholland, who had been connected with the Stephenson car factory, of this city, for 34 years, was sworn in behalf of the plaintiff, and testified : “ Q. Has that company been building for use stages with solid backs or steps ? A. They have built steps with solid backs; yes, sir. Q. Steps with solid backs ? A. Yes, sir. Q. During the period you have been in business? A. They have; yes, sir. Q. And which steps are known in the trade, are .they ? A. This step is known in the trade; yes, sir. Q. Step with a solid back? A. Yes, sir. Q, And was known in 1889 oand the fall of that year? A. We have built some since that. :Q. At that time it was well known as a form of construction, was it not? A. This was one of the forms of construction ; yes, sir. Q. Apart from the diagram, steps with solid backs were well known as a form of construction ? A. Hot apart from this. Q. I mean, without looking at the diagram [of a closed step], you, in your memory, know that steps to stages having solid backs were a well-known form of construction in the trade? A. Yes, sir. Cross-examined by Mr. Erwin: Q. Were those the only kind of steps built? A. No, sir; it is not. Q. Were there not some without a solid back? A. Yes, sir. Q. Were they very generally used? A. In a few cases we had an open step, what we call an open step. Q. With rubber on the step, or without it? A. Well, without the rubber. Q. And those were used in other forms of stages? A. Yes, sir. Q. Just as general as the solid back ones. A. This is known as a stage step. The other is something new. That is the only step made for large cities. Q. The open step ? A. Yes, sir. The first that was made, I believe, was for Baltimore. They were used in the city of Baltimore. Q. And the open step, you say, was made for large cities ? A. Had been made for the city of Baltimore. That is a pretty large city. Q. And have been used in this city. A. I have seen them in the city; yes, sir.

Hall, a car and stage builder, sworn for the defendant, testified that the step in use on that stage was the kind usually used, and that, in his opinion, it was safe and convenient. On the cross-examination he testified : “ Q. Wouldn’t a solid back or riser to the step prevent the foot from going through and catching under the step there ? Is there any way in which the foot could get through that step if there was a solid back to it ? A. No; not if there was a solid back there. I never saw a stage with a solid back to its step. I never heard of one, except these hotel coaches. They are inclosed all in. Q. You have seen stages that have solid backs to the steps ? A. Yes; but not on an ordinary vehicle.”

Under this state of the evidence, it was not error for the court to refuse to rule as a matter of law that there was no evidence that the step was defective, and the question was properly left as one of fact to the jury.

There is but a single exception to the admission of evidence that is deserving of discussion. The plaintiff was asked : “ What was your income a year, prior to this injury, from your business? (Objected to, on the ground that there is no allegation of special damages in the complaint. Objection overruled. Exception.)”

It is alleged in the complaint that the plaintiff has become disabled for life to such an extent as to seriously interfere with the active prosecution of his business.” This is certainly not a very specific allegation of special damages resulting from an injury to the plaintiff’s business, but it was sufficient to give defendant notice that an attempt would be made to recover such damages; and, if it had desired a more definite allegation, it should have moved that the complaint be made more definite and certain in this particular. Ehrgott v. Mayor, etc., 96 N. Y. 264. The damages awarded in this case were not very large, and it can hardly be asserted that much, if anything, was awarded to the plaintiff for loss of business.

The judgment and order should be affirmed, with costs.

Parker, J., concurs.

Van Brunt, P. J.

(dissenting).—I cannot concur in the conclusion arrived at by Mr. Justice Follett as to the questions raised by this appeal. It seems to me that it was clear error for the court to refuse to charge that there was no proof that the step of the stage was in any way defective. This error was accentuated by the reply of the court to the request. He said to the jury : “You have heard the evidence in regard to what might have been done with known appliances with respect to the stage,”—thereby charging the jury that it there were any known appliances which might possibly have made this stage safer, in view of the knowledge obtained from the happening of this accident, the defendant was guilty of negligence; thus presenting a rule of diligence for which I have been unable to find any precedent, and for which no authority is claimed by the respondent. The evidence was conclusive, even according to the testimony of the plaintiff’s witness on this subject, that this was an ordinary mode of construction. It is true he testifies that there were other modes of construction by which the back of the step was filled in, but it is not contended that that mode of construction was adopted for the purpose of meeting results such as were produced in the case at bar. It is probably true that the plaintiff might not have been so severely injured had this step had a solid back; but there is no particle of evidence that any accident of this kind had ever happened before. Under the rule as settled by a large number of cases, of which the following are merely samples, where an appliance has been used for a considerable length of time, and has not been found defective, and no accident has happened in consequence of it, it is not negligent to continue its use. Lafflin v. Buff. & S. W. R. R. Co., 106 N. Y. 136; 9 St. Rep. 596; Crocheron v. North Shore S. I. Ferry Co., 56 N. Y. 656; Loftus v. Union Ferry Co., 84 N. Y. 455; Tonkins v. N. Y. Ferry Co., 47 Hun, 562; 14 St. Rep. 874. The establishment of any other rule would be requiring of transportation companies a measure of diligence with which it would be almost impossible for them to comply. It is undoubtedly true, as the expert witness Mulholland testifies, that steps with risers or solid backs were a well-known mode of construction in building stages at that time. But he also testifies that these were not the only kind of steps built; that open steps were used in other forms of stages; that the closed step was something new; and that open steps were made for large cities. Without considering the testimony upon the part of the defendant in this respect, it is clear that the stage in question was built after the ordinary manner of construction; and that the jury had no right to find, as they were virtually directed to do, that the defendant was negligent because of this method of construction.

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


author: Van Brunt, P. J.

text:
    Jacob Kimmer, as Administrator, etc., Resp’t, v. John Weber et al., App’lts.

      (Supreme Court, Central Term, First Department,

      Filed November 16, 1894.)

    1. Master and servant—Fellow.
    A foreman, who has full charge of the work and authority over the workmen, is not their fellow-servant.

      2. Evidence—Personal injuries.
    In an action for the death of an apprentice, the wages actually received by decedent is admissible on the question of damages, though he was entitled, under his contract, to less than he received.
    3. Same.
    Testimony of the father that decedent was in the habit of giving him a certain sum, is competent to show that decedent was earning that sum, though the witness has no personal knowledge as to the amount earned.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order nenying a motion for a new trial.

      Hamilton Wallis, for app’lts; H. B. Barnum, for resp’t.
   Van Brunt, P. J.

This action was brought to recover damages sustained by reason of the death of the plaintiff’s intestate and son. At the time of the accident the deceased was nearly 19 years of age, and was working for the defendant as an apprentice. The defendants were builders, engaged extensively in building operations in this city, and at the time in question were employed in reconstructing Koehler’s brewery, on the corner of Twenty-ninth street and First avenue, where they employed a gang of men, of whom the deceased was one, the foreman being a man by the name of Joseph Turner. It appears that, for some time prior to the happening of the accident which resulted in the death of the deceased, there were working in this building, besides the masons, a gang of plumbers, and also a gang of carpenters, both of whom were entirely independent of the deceased. The plumbers had been using a scaffold constructed for them in the prosecution of their work in the lower stories of the building, which was taken apart and used in the upper floor, where the accident took place, and there re-erected. The ceiling, however, being much higher on this floor than on the lower floor, the height of the scaffold was increased by fastening uprights upon its top, and the planks forming the plumbers’ scaffold were placed on or near the top of the structure. While the plumbers were engaged upon this last floor, it became necessary for the masons in defendant’s employ to do some word on the ceiling. For this purpose they erected a structure of their own, partially resting upon this plumbers’ scaffold and partially resting upon a support which was erected by themselves. The fact of the insufficiency of this scaffold was "called to the attention of Turner, who was the foreman of the deceased, and had been such for some ten years, and gave all the orders to the men who were employed about the premises, although one of the defendants was accustomed to come to the work once or twice each day. Turner replied, to the suggestion of the insufficiency of the scaffold, “ Well, I guess it is all right; ” and the men went on working upon the scaffold under the directions of Turner. After the scaffold had been used for some time, in making some changes one of the cross pieces broke, the scaffold fell, and the deceased was so injured that he died shortly thereafter. The question presented upon the' trial was whether the defendants were liable because of the insufficiency of this scaffold. The jury having rendered a verdict in favor of the plaintiff, from the judgment thereupon entered, and from an order denying motion for new trial, this appeal is taken.

It is urged that the court below erred in submitting any question to the jury, upon the ground that there is no evidence in the case to connect the defendants personally with the accident; and that if any negligence was shown it was that of Turner, the foreman of the gang of laborers, who was a fellow servant, and for whose negligence the defendants are not responsible. ' It is undoubtedly true that if the position of Turner was of such a character that he was to be considered as a fellow servant his negligence cannot be imputed to the defendants. But if Turner stood in the place of the defendants, with respect to the masons employed upon this work, then the defendants would be liable for any negligence of his which resulted in injury to their servants. That the latter was his position seems to have been satisfactorily established by the evidence. It appears that Turner gave all the orders to the men, even in the presence .of the defendants; that the only interest which they took in the conduct of the work was that one of them went there once or twice daily and talked with Turner—giving no directions to the men, and leaving the whole conduct of the work to Turnen This seems to bring the question within the rule laid down in the case of McGovern v. Central Vt. R. R. Co., 123 N. Y. 281; 33 St. Rep. 416, where a principal was held liable for the action of his superintendent, such superintendent having the entire control of the elevator in which the accident happened. It was also held in the case of Pantzar v. Tilly Foster Mining Co., 99 N. Y. 368, that where a coal mine was conducted under the management of a superintendent, who had full power and control and discretion in conducting the work, the owner was liable for the negligence of such superintendent. In the case at bar it is apparent that Turner had full charge and control of the work. He is the only person who gave any directions to the men as to the method of the prosecution of the work, and it is evident that the defendants intrusted the same entirely to him. They would have appeared to exercise no control over the workmen, but simply to have consulted with Turner, who was conducting the work for them. From this evidence, the court had a right to hold that Turner had full control of the work and full discretion as to the method of its prosecution, and that therefore the defendants were liable for any negligence on his part which resulted in injury to their servants. And the jury having found, upon the evidence to which brief notice has been called, that the scaffold was insufficient for the purpose for which it was intended, and the accident resulted therefrom, and that Turner was aware of its unsafe condition, and failed to remedy the defects, or to provide a safe and stable scaffold for the workmen to work upon, the right of the plaintiff to recove the damages sustained because of the insufficiency of the scaffold seems to be established.

Certain exceptions have been taken to the admission of evidence which it may be proper to notice. It is claimed that it was erroneous to admit evidence as to the wages the deceased received. This evidence was objected to upon the ground that the articles of apprenticeship were conclusive upon that point, and that any payment which may have been made to him beyond that which was called for by the articles was a mere gratuity, and any agreement to pay anything further for his services was void for want of consideration. We do not see that this exception was well taken. The plaintiff had a right to show what amount this deceased was earning at the time; and, although his employers may have been accustomed to pay him more than they were under legal obligation to do, the fact that the articles of apprenticeship did not require such payment in no way rendered the evidence incompetent. It was pertinent to the question of the pecuniary loss which bad been sustained by the next of kin of the deceased. It is urged that it was error not to strike out this evidence because, upon cross-examination, the witness was shown not to have any personal knowledge of the amount which the deceased received. But it is apparent, the witness having sworn that this was the sum which his son was accustomed to give him out of his wages, that he had precisely the knowledge which it was important to lay before the jury, namely, the pecuniary loss which he had suffered by reason of his son’s death. The other exceptions to the admission of evidence do not seem to be worthy of particular mention.

Certain exceptions to the judge’s charge are called to our attention. It is urged that the exception to so much of the charge as charged “ that if the foreman is negligent the employer is himself liable as though he himself was negligent ” was well taken. The court, in reply to this exception, stated: “ If the foreman is negligent in the performance of a duty resting upon the employer, the employer is just as much liable as if he personally had superintended the performance of the work. That is what I think I said, and intended to say.” It is urged that the court should have gone further, and instructed the jury what were the duties testing upon the employer. This the court had already done. He had charged the jury “ that it is a legal duty resting upon the employer to see that such structures and such appliances or machinery as one of his employes is required to use in the natural and necessary prosecution of his business are adequate or reasonably adequate for that purpose; ” which seems to have been a correct exposition of the law.

It is also urged that the exception to so much of the charge as charged that there was a conflict of evidence as to how the accident happened was also well taken, in that it is claimed that there was no conflict of evidence as to how the accident happened. It does not seem to us, whether the court was mistaken or not in charging that there was no conflict of evidence upon that point, that any injury has been sustained by the defendants thereby. But we think, upon a reading of this case, that it is not apparent precisely how the accident happened, and that there are discrepancies in the statements of the witnesses as to how the break occurred which caused the scaffold to fall. It is true that it is conceded that some of the fellow servants of the deceased were in the act of handling a heavy timber in connection with this scaffold; but precisely how that timber caused the scaffold to break is a matter of dispute between the witnesses. Therefore the court was entirely right in saying there was a conflict of evidence. Upon the whole case, we are of the opinion that the judgment and order appealed from should be affirmed, with costs.

All concur.