author: Finch, J.

text:
    The People ex rel. Jeremiah Clancy, Resp’t, v. The Board of Supervisors of Westchester County, App’lt.

      (Court of Appeals,

      Filed October 24, 1893.)

    1. Constitutional law—Supervisors.
    Chap. 54, Laws 1893, dividing the city of Yonkers into wards and authorizing the electors of each ward to elect a supervisor, is not violative of art. 3, § 18, of the constitution.

      2. Same.
    An act adopting or amending a city charter, although it provides for ward supervisors, is not an act “providing for the election of members of the hoard of supervisors,” notwithstanding the fact that under a general law such supervisors become ex officio members of such board.
    Appeal from order of the supreme court, general term, second department, affirming order awarding a peremptory mandamus compelling the board of supervisors to recognize relator as a supervisor of the fourth ward of the city of Yonkers.

      Wm. H. Robertson and Wm. Romer, for app’lt; Joseph H. Daly, for resp't.

       Affirming 53 St. Rep., 328.

   Finch, J.

By an act of the legislature amending the charter of the city of Yonkers, Laws of 1892, chap. 54, § 4, it was allowed a supervisor for each ward, to be “ elected by the electors of their respective wards.” At the annual town election in 1892, no supervisor for the whole city was elected, and Jacob Bead, who was chosen the previous year, claimed to hold over, and be and remain the sole supervisor of the city. But on the last Tuesday of March in that year the relator was duly elected supervisor of the fourth ward by virtue of the amendment of the charter allowing a supervisor for each ward. The Bevised Statutes provide, and the County Act of 1892, chap. 686, art. 2, § 10, substantially repeats, that the board of supervisors shall consist of the supervisors of the cities and towns in each county. The relator, therefore, if legally elected a supervisor for the fourth ward of the city, became, under the general statute, a lawful member of the board of supervisors of Westchester county, and entitled to a seat in that body. When the board met, Jacob Bead appeared and claimed to be recognized as the sole supervisor of Yonkers, upon the ground that the charter amendment of 1892, giving supervisors to the several wards, was in violation of the constitution and null and void. The board, acting upon that theory, refused to admit the relator and denied his right to act with them, although he appeared and demanded his seat, and Bead was recognized as supervisor of Yonkers by reason of his holding over in default of a successor duly elected. The relator, therefore, applied to a special term of the supreme court for a peremptory mandamus, requiring the board to recognize him as a supervisor of the city of Yonkers, and permit him to act as a member of the board. The writ was awarded, whereupon the defendant appealed to the general term, which affirmed the order, and the board then took an appeal to this court.

The sole question thus presented is whether the act of 1892, amending the city charter, is constitutional. In defending their position the board rely upon article 3, § 18 of the constitution, which commands that “the legislature shall not pass a private or local bill in any of the following cases,” one of which is “ providing for election of members of the board of supervisors.” It is not altogether easy to understand what this provision was intended to forbid. Members of the board of supervisors are never elected as such, but hold that office and perform its duties under a general law, and by force of their election as supervisors of separate towns or cities. We shall better understand what the prohibition was intended to cover, if we first consider the situation as to supervisors of towns, and then as to supervisors of cities.

The constitution provides (art. 2, § 5) that “ all elections by the citizens shall be by ballot, except for such town officers as may by law be directed to be otherwise chosen.” Here was permission for the legislature to authorize the election of town supervisors, not only by ballot, but after the old town meeting fashion of calling for the ayes and noes, or by a show of hands or other ■division. As to some town officers the statute still permits these ancient methods of choice. The legislature ordained (1 R. S., part 1, chap. 11, art. 1, title S) that the supervisor should be elected by ballot, and also other named town officers, and then the law proceeds thus: “ All other town officers shall be chosen either, 1, by ballot, 2, by ayes and noes, 3, by the rising or dividing of the electors, as the meeting may determine.” So that, under the fundamental law, it was competent for the legislature to permit the election of a supervisor by either one of the three specified methods of voting, so far as towns were concerned.

The constitution further provided (art. 3, § 22), in constituting the board of supervisors, that it should be “ composed of such members and elected in such manner and for such period as is or may be provided by law.” That is, what members should constitute the board, the manner of their election and their terms of office were details committed to the discretion of the legislature, and that body could enact laws providing for the election of supervisors by ballot, or ayes and noes, or an actual division, and ■could fix=their terms of office. It could also, as it did, determine the times and places of holding such elections. 1 R. S., pt. 1, ch. 11, title 2, art. 1, §§ 1, 2. Now, all these details could be, as they had been, properly regulated by general laws applicable to all the towns alike, and great mischiefs would result if, by the operation •of local laws, all uniformit\' should be lost,and each town be suffered to go its own independent way. And hence it was that in 1874 the discretion of the legislature in these respects as to the important office of town supervisors, which had been exercised by .general laws, was required to be so exercised in that manner only, and never by mere local bills. The prohibition, therefore, had a wide range of application to town supervisors, and prevented the passage of local bills giving one town power to choose its supervisor by a different mode of voting, at a different dictation of time and place, and for different official terms from other towns ■of the state.

If, then, the constitutional provision related to city supervisors, it would be natural to confine it to a similar class of details ; but I do not think it relates to them at all, because of the manner in which they come into existence. Cities acquire their corporate life by force of special, several and purely local acts of the legislature, which creates and frames them in the regular exercise of governmental functions. They have never been created by gen-oral laws, and cannot easily or prudently be organized in any other method than by special and local enactments. It may be possible to frame some general law under which cities could be organized, but difficulties would spring up in many directions, and the probable result would be some broad and general outline still requiring to be supplemented by more or less of special legislation. Wards would be unequal, and to give a supervisor in all cases to each might in some instances give the city more power in the county than would be just, or more even than was desired, ■ But, conceding the possibility, it had never been realized or attempted to be realized when § 18 of the constitution was adopted,, and cities had always been organized by special charters.

The constitution permitted that mode of organization, for in requiring villages to be chartered 'by general laws and omitting cities it recognized the propriety and necessity of leaving the-latter to be organized by local laws. But that permission must, necessarily extend to and cover all the proper subjects of a city charter, and among them are, undoubtedly, the division into wards and the allowance of a supervisor in each, or in so many as should, be prudent and satisfactory. A charter which left that out and excluded the city from having a supervisor at all would be a. maimed and imperfect exercise of the power of city organization. And a law which so creates and charters and organizes a city is not, within the constitutional meaning, a local law “providing for the election of members of the board of supervisors’ ’ because as-a local law for the organization of a city government, it divides-the municipal area into wards and gives each its own supervisor. Any other view brings, the constitutional provisions into discords and contradiction. To uphold the contention of the defendant, will compel us to say that what the constitution permits to be done by a local law it also forbids to some extent by mere indirection and inference; that its authority to organize city governments is maimed and distorted by a prohibition applying to one-of its necessary and customary details; and that the framers of the constitution meant not only to prevent one group of obvious-evils, but in the process to introduce and set in operation another. A general law for the organization of cities, if possible, would be-quite likely to prove inadequate. A city on the seaboard has necessities widely different from one inland, and the care of a. large population is quite unlike that of a small one. The work is best done by a local charter, and to say that because of that the framers of the constitution, and the people in adopting itr meant to deprive a city of its ward supervisors, and, as a consequence, of adequate representation in the county legislature, and that too, not directly, but through an inference from a prohibition-having its own proper field of operation, is to misapprehend the constitutional intent, and set the instrument in some degree at. war with itself. The legislative and judicial construction has-been very generally in the direction of that which we here adopt-Cities all over the state have been supplied with supervisors by the local, law of their charters, and while consequences should never frighten us from seeking out and declaring the truth, they are sometimes valuable aids in ascertaining what that truth really is. The courts have many times in the construction of § 18 been required to prefer the spirit and3 intent of the law to its rigid and arbitrary letter; and in one case, at least, the necessity of local legislation to accomplish a lawful and useful result was deemed a sufficient reason for holding that the prohibition of § 18 was not intended to apply, and should not apply, to prevent the desired result. In Matter of Application of Union Ferry Co., 98 N. Y., 150.

And so, taking into view all the provisions relating to the general subject, we are of opinion that an act adopting or amending a city charter, although it provides for ward supervisors, is not an act “ providing for the election of members of the board of supervisors,” notwithstanding the fact that under a general law such supervisors become ex officio members of such board.

It follows that the peremptory mandamus was properly allowed, and the order should be affirmed, with costs.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    The People ex rel. Thomas F. McGrath, Resp’t, v. The Board of Supervisors of Westchester County, App’lt.

      (Court of Appeals,

      Filed October 24, 1893.)

       Affirming 53 St. Rep., 328.

   Order affirmed, with costs, on authority of People ex rel. Clancy v. Same Defendant.


text:
    The People ex rel. William H. McPherson, Resp’t, v. The Board of Supervisors of Westchester County, App’lt.1

      (Court of Appeals,

      Filed October 24, 1893.)

   Order affirmed, with costs, on authority of People ex rel. Clancy v. Same Defendant.

All concur.


author: Gray, J.

text:
    Mary Reid, Resp’t, v. The Mayor, etc., of the City of New York and The City of Brooklyn, App’lts.

      (Court of Appeals,

      Filed October 24, 1893.)

    Negligence—New York and Brooklyn bridge—Party dependant.
    Plaintiff having suffered personal injuries while a passenger in a car upon the New York and Brooklyn bridge, in 1890 brought this action for damages against the two cities. In 1891 an act was passed providing that the defendants should not be liable thereafter for any matter of this character but that the trustees of the bridge should succeed to all liabilities of the two cities growing out of the bridge, etc. Held, that plaintiff had a remedy against these defendants of which she could not be deprived, and which she could and did enforce by the commencement of this action.
    Appeal from judgment of the supreme court, general term, first department, affirming judgment in favor of plaintiff, entered upon verdict of jury.

      D. J. Dean, for app’lts; Charles J. Patterson, for resp’t.

       Affirming 53 St. Rep., 69.

   Gray, J.

The plaintiff having suffered personal injuries while? a passenger in a car upon the New York and Brooklyn bridge, brought this action to recover damages against the municipalities'. named, as the owners of and controlling the bridge structure. The action was commenced in 1890, and in 1891 an act was passed, chap. 128, Laws 1891, which provided that “ Neither the mayor, etc., of New York, nor the city of Brooklyn, shall be liable hereafter for any matter * * * growing out of the New York & Brooklyn bridge. * * * The trustees of the New York & Brooklyn bridge shall succeed to all liabilities of the two cities growing out of the bridge, and all claims and demands growing out of the bridge upon contract, and for negligence and for wrongs, which heretofore might be prosecuted against the two cities, or either of them, shall be prosecuted against the trustees •of the New York & Brooklyn bridge, and they shall be liable therefor in their corporate capacity,” etc., etc. When the cause came on for trial a motion was made to dismiss the complaint upon the ground that under the said act of 1891 the trustees of the bridge had succeeded to all the liabilities of the defendants, .and that they, and not the defendant cities, were liable to the plaintiff. That objection to the maintenance of this action presents the only question argued here.

That the two cities were properly made defendants in the action cann.ót be disputed, but it is with great seriousness insisted that, because of the language in the act of 1891, which I have quoted, the defendants were relieved from the liability under which they were to the plaintiff, and that such liability had been shifted to the bridge trustees. The argument is made that the provisions were absolute in their nature with respect to the cessation of liability on the part of the cities, and that the legislature had thereby shifted the existing liability. The position of the •defendants is exceedingly technical, and we are wholly unable to concede any force to the argument made. The plaintiff had a remedy against these defendants of which she could not be deprived. The undertaking was to carry the plaintiff safely, and for the results of the negligent performance of that undertaking the plaintiff had a remedy against the defendants which she could and did enforce by the commencement of this action. We may say that the right of action was the plaintiff’s property. To hold that her remedy was taken away, and thus her pending action defeated by this legislation, would be giving a latitude of interference beyond any justification in authority.

The construction contended for is as unnecessary as it seems .strained. In providing that the bridge trustees “ shall succeed to all liabilities of the two cities,” etc., the intention of the legislature is plain enough. The cities, through their ownership of the bridge, rested under every liability which the obligation and duties of ownership might give rise to. The bridge trustees were substituted in the place of the cities as the parties to be responsible thereafter for breaches of contract, or for torts, and they succeeded to whatever liabilities the cities might come under by virtue of their ownership. The succession of liability was prospective and obviously meant that they came into the place of the cities with respect to whatever causes of action might arise, and which, but for the act, would be enforcible against the cities.

We think the judgment should be affirmed, with costs, and '.that this is a case in which the penalty of ten per cent damages •should properly be enforced under § 3251 of the Code of Civil .Procedure, subd. 5.

Judgment affirmed, with costs*

All concur.


author: Per Curiam.

text:
    Alexander T. Compton, App’lt, v. The Chelsea, Resp’t.

      (Court of Appeals,

      Filed October 27, 1893.)

    Sew trial—Ejectment—Code Civ. Pro., § 1525.
    Where a complaint contains all the necessary allegations for a cause of action in ejectment, allegaiions that the deiendant’s unlawful entry was by force do not change the nature of the action, but only affect the question of damages, and the case is within § 1525 of the Code.
    (Peckham and Gray, S3., dissent.)
    Appeal from order of the supreme court, general term, first ■department, reversing order granting plaintiff a new trial under :§ 1525 of the Code.

      A. T. Compton, for app’lt; William H. Shepard, for resp’t.

       Reversing 54 St. Rep., 112.

   Per Curiam.

In an action to recover real property, or the ■possession thereof, the plaintiff may demand in his complaint, and, in a proper case, recover damages for withholding the property. -Code, §§ 1496, 484, sub. 5. Under § 1669, if the plaintiff was disseized, and kept out of possession by force, he may have treble damages in an action therefor against the wrongdoer. Where the .plaintiff has title, ejectment will lie for a forcible entry and detainer, and in such a case treble damages may be demanded and ■recovered, if he establishes that the disseizin was actually effected ■vi et armis. It is true that by §§ 2233-6 a summary remedy is ■given, where the unlawful entry and detention is the result of ■physical force, by a proceeding in a district court, but the plaintiff is not restricted to such a course any more than in a case where a 'tenant in possession refuses to surrender upon the expiration of his tenancy. He may, if he so elects, resort to his action of ejectment, and in the same suit recover his damages, which may be ¡trebled if the wrongful entry and withholding are shown to be of the character described in § 1669. We are, therefore, of the opinion that there are not two inconsistent causes of action stated in the complaint. It is true that the plaintiff alleges that the defendant’s unlawful entry was by force, but that does not change 'the nature of the action ; it merely characterizes one element of it, and supports the plaintiff’s claim for increased damages on account of it; but the plaintiff may still insist upon the recovery of the possession, if his pleading is supported by proofs, and of such ■damages as he may be shown to be entitled to. It is also true that he might have brought a separate action simply for the recovery of the treble damages which are authorized by § 1669, and that in such an action he need not prove his right to possession, but only that he was peaceably in possession and bad been «forcibly ejected. But he is not precluded from recovering such damages in case he has the right to the possession and seeks; to recover the property itself. If he establishes his title, he-may have such damages for the wrongful entry and detainer of the defendant as the law permits upon the facts which may be proven and found at the trial.

The complaint, we think, contains all the necessary avermentsof a cause of action in ejectment; it has been regarded as an-, action of that character upon both of the former trials, and the-case was thus brought within the provisions of § 1525, which does not permit of the exercise of any discretion when application is made for a new trial and the statutory conditions have-been complied with.

The order of the general term must be reversed and that-of the special term affirmed, with costs in this court and at. general term.

All concur, except Peckham and Gray, JJ., dissenting.


author: Williams, J.

text:
    In the Matter of the Cancellation of the names of Matilda Joslyn Gage et al. from the registry lists.

      (Supreme Court, Special Term, Onondaga County,

      Filed October 27, 1893.)

    Election —Laws 1892, chap. 214—Constitutional law.
    Chapter 214, Laws 1892, authorizing women to vote for the office of' school commisioner, is violative of art. 2, § 1, of the constitution, and-women, therefore, are not entitled to vote for such office.
    Application to cancel the names of Matilda Joslyn Gage, of Fayetteville, and Julia McKenzie and Inez Seelye, of Whitesboro.. from the registry lists.
   Williams, J.

The statute of. 1892 clearly provided that; women might vote in the various school commissioner districts-of the state for the office of school commissioner. Under that, act a large number of women have registered in the counties of Onondaga and Oneida. Two adjudications are presented, one-from the county of Onondaga and the other from the county of Oneida, with a view of determining whether women may vote for this office. It is provided by § 2 of art.. 10 of the constitution: “All county officers whose election or appointment is not provided for by this constitution shall be elected by the electors of the respective counties or appointed- by the boards of supervisors, or other county authorities, as the l'egrislature shall direct. All such town and village officers whose election or appointment is not provided for by this constitution-shall be elected by the electors of such cities, towns or villages,., or some division thereof, or appointed by such authorities thereof;, as the legislature shall designate for that purpose. All other officers whose election or appointment is not provided for by this, constitution and all officers whose offices may hereafter be created by law, shall be elected by the people or appointed, as the legislature mav direct.”

This office of school commissioner is not an office provided for by the constitution,nor was it an office in existence-at the time-the constitution was adopted. It is, therefore, an office created by law after the adoption of the constitution, and by the terms of this provision such officers might be elected by the people or appointed, as the legislature shall direct.

The statute creating the office of school commissioner passed in 1856, and the statute passed in 1864 continuing such office leaves no doubt but that the office was made by the legislature one whose incumbent should be elected by the people, and not appointed by any authority. By § 3, title 2, chap. 553 of the Laws of 1864, it is provided:

“ The school commissioners for each school commissioner district shall be elected by the electors thereof by a separate ballot at the general election of 1866 and triannually thereafter. The laws regulating the election and canvassing the vote for county officers shall apply to such election.”

„ And so in the act of 1892, authorizing women to vote for the office, it is provided : “ All persons, without regard to sex, who ■are eligible to the office of school commissioner and have the other qualifications now required by law, shall have the right to vote for school commissioners in the various commissioner districts of the state.”

And then the act further provided for ballots to be furnished and used by women in voting for this office, etc.

In view of these and other provisions of the statutes with reference to the office of school commissioner, it must be conceded that the legislature has made this office one to be filled by election and not by appointment. It is provided by § 1 of article 2 of the ■constitution, “ Every male citizen of the age of twenty-one years, who shall have been a citizen for ten days, and an inhabitant of the state one year next preceding an election, and for the last four months a resident of the county, and for the last thirty days a resident of the election district in which he may offer his vote, shall be entitled to vote at such election in the election district of which he shall at the time be a resident, and not elsewhere, for all ■officers that now are, or hereafter may be, elective by the people, and upon all questions which may be submitted to a vote of the people, etc.” It is well settled that this provision has the effect to exclude all persons who are not males from the right to vote for the officers referred to in the provision, and the legislature has no power to pass any act authorizing females to vote for any such officers.

We are brought, therefore, to this conclusion: The office of school commissioner having been made elective by the people, no person can vote for an incumbent of the office who is not authorized under this latter provision of the constitution to vote, and only male persons are so authorized to vote. The only escape from this conclusion must be found in the claim made in behalf of these women, that the office of school commissioner is not covered by the latter provision of article 10, § 2 of the constitution : “ All officers whose offices may hereafter be created by law shall be elected by the people, or appointed, as the legislature may direct.”

it seems to me that such claim is untenable, and without support in reason or authority. No attempt is here made to cite any authorities or analyze the same. Considerable time was taken in-the argument and the authorities were thoroughly examined and considered by counsel and the court at the time they were cited and referred to. Counsel are fully aware of the views entertained by the court with reference thereto, and they need not be stated at length here. My conclusion is that there can be no reasonable doubt but that the act of 1892, authorizing women to vote for the office of school commissioner, was and is a violation of the constitutional provision hereinbefore referred to, and that women are-not entitled to vote for the office of school commissioner.

The application should, therefore, be granted. Formal orders-may be prepared by counsel and submitted for signature.


author: Lewis, J.

text:
    Margaret R. Green, Ex’rx, Resp’t, v. Emma S. Reynolds, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    1. Dower—Failure oe conditions in deed.
    Plaintiff’s testatrix, wlio was the grandmother of defendant’s husband,, conveyed to the latter certain premises on condition that he should support, maintain and clothe her during her life, pay her funeral expenses, keep the building insured and pay taxes and assessments, which conditions were the sole consideration for the conveyance. The husband accepted the deed, but wholly failed and neglected to perform the conditions, and at her request reconvoyed the premises to her, defendant refusing to join in the reconveyance. She left the premises a few days later, leaving testatrix in possession. Held, that defendant’s right of dower being a mere incident of the title of her husband, depended on the performance by her husband of the conditions mentioned; and the plaintiff’s testatrix having entered for a breach of the condition on which the estate was held, it fell with the estate of the husband.
    3. Same—Costs.
    As the defendant, by her refusal to join in the conveyance, put plaintiff to the necessity of bringing the action to divest her apparent dower interest, it is not an abuse of discretion to give costs against the defendant.
    Appeal from a judgment of the supreme court entered in. Cayuga county upon the report of a referee.

      F. D. Wright and Frank C. Cushing, for app’lt; John D. Teller, for resp’t.
   Lewis, J.

This action was brought to obtain a judgment, declaring the defendant’s inchoate right of dower in certain premises in the city of Auburn, county of Cayuga, conveyed to her husband, Fred A- Eeynolds, by his grandmother, Phoebe Abbey, forfeited and terminated.

The referee to whom the action was referred, upon evidence sustaining bis findings, found as facts that Phoebe Abbey, a resident of the city of Auburn, was the owner in fee of the premises-described in the complaint, and on November 5,1890, she entered into an agreement with her grandson, Fred A. Eeynolds, to convey to him the premises described in the complaint, on condition that he assume and fulfill the covenants and conditions set forth in the deed as the consideration for the grant, and that relying upon sai$ agreement she executed and delivered to him a conveyance of said premises upon the conditions stated therein, to-the effect that the grantee should support, maintain and clothe the grantor during the term of her natural life, pay her funeral expenses, keep the buildings upon the premises insured and in-good repair, and pay the taxes and assessments thereon, and that upon failure to perform any of said covenants and conditions the grant should be void and of no effect. These conditions were the sole consideration for the conveyance. Reynolds accepted the deed, assented to the covenants and conditions, went into possession of the premises, but he wholly failed and neglected to perform on his part and conceded his inability so to do, and on the 31st day of January, 1891, at the request of the grantor, he executed and delivered to her a quit-claim deed reconveying the premises. The sole and only consideration for said re-conveyance was his failure to keep and perform his agreements and covenants-contained in the deed to him. Mrs. Abbey on the same day presented the deed to the defendant and requested her to join in the execution thereof which she refused to do and thereupon this action was-commenced. Mrs. Abbey died after the commencement of the action, leaving a last will which was duly admitted to probate, and letters testamentary were granted to the plaintiff, who was the executrix named therein. The plaintiff was the sole devisee of the real estate described in the complaint and was by the will authorized to sell and convey the same as executrix. The referee found as conclusions of law that the estate acquired by Fred A. Reynolds under the deed from Phoebe Abbey was forfeited on account' of the breach of the conditions upon which the same was held, and that the estate of the defendant in said premises was at the same time terminated by the forfeiture of the principal estate, and that she had no interest as doweress or otherwise in the premises described in the complaint, and directed judgment accordingly.

The defendant was at the time of the conveyances mentioned, and still is, the wife of the grantee, Fred A". Reynolds. The re conveyance to Mrs. Abbey by her husband was without her knowledge or consent.

The defendant’s dower interest in the land was a mere incident to the title held by her husband. The instrument by which he took the title provided that if he failed to pay for the property by performing the conditions contained in the deed the grant should be void and of no effect. . The sole and only consideration for the conveyance of the property was the grantee’s agreement to perform the conditions upon which he was to have the property. Plaintiff’s right to dower in the premises depended upon the performance by her husband of the conditions mentioned. The husband voluntarily re-conveyed the property to his grantor, being unable or unwilling to perform his part of the agreement. Had he refused to re-convey and a joint action against himself and wife had been 'brought upon the evidence presented by this record, plaintiff would have been entitled to a judgment declaring the conveyance void as against both defendants. The defendant moved away from the premises a few days after her husband re-conveyed them, so that Mrs. Abbey was fully restored to her former possession. It was the case of a re-entry into the possession of an estate for a breach of a condition upon which the estate was held, and the dower interest of the wife being a mere incident to the title of her husband, fell with the estate of the husband, Beardslee v. Beardslee, 5 Barb., 324, upon the same principle that in case of a deed and a mortgage executed simultaneously for the purchase money, the right of dower of the wife of the grantee is liable to be defeated by the foreclosure of the mortgage for the non-payment of the purchase money.

Mrs. Abbey in fact continued to reside upon the premises from a time prior to the conveyance to her grandson, and up till the time of her death. The doctrine that the breach of a •condition subsequent does not defeat an estate until entry by the grantor has no application in this case, for hers was a reentry for conditions broken. The plaintiff having shown a state of facts which would have entitled her to a judgment declaring the conveyance to the defendant’s husband void, there would •not seem to be any good reason why her action to foreclose and divest the defendant’s apparent dower interest should fail because of the voluntary surrender by her husband of his rights and interest in the property to his grantor.

The referee gave the plaintiff costs against the defendant; the defendant claims this was an error. The defendant by refusing to join with her husband in the conveyance put the plaintiff to the necessity of commencing and prosecuting the action.

It was within the discretion of the referee to allow costs, and we see no reason for disturbing the judgment because he exercised that discretion in favor of the plaintiff.

.The judgment appealed from should be affirmed, with costs against the defendant.

Dwight, P. J., Haight and Bradley, JJ., concur.


text:
    Charles C. Cleveland, App’lt, v. The Town of Pittsford, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    He&ligeitce—Comtjkibutoey.
    A highway in the defendant town, at its intersection with another highway, divided into two tracks going north and south, and between them, was a knoll or mound about two feet higher than the surface of the highway. At a time when there was about two feet of snow plaintiff, in making the turn into the other road with a heavy load of barrels, drove upon the knoll, and his load was upset and he was injured. It appeared that he was familiar with the highway, and knew of this knoll, and that it was not intended to be used for travel. Held, that he was guilty of contributory negligence, and could not recover.

      Motion for a new trial upon exceptions ordered heard at the general term in the first instance, after a nonsuit at the Monroe circuit.

      George F. Slocum, for app’lt; George F. Yeoman, for resp’t.
   Lewis, J.

This action was brought to recover damages alleged to have been sustained by the plaintiff by being overturned in the highway in consequence of its defective condition, in the town of Pittsford, Monroe county. There is in the town a country highway running southerly from the village of Cartersville and is known as East street or Cartersville road. Intersecting this road at a point south of Cartersville is a highway running easterly and nearly at right angles to the Cartersville road, to what is known as Richardson’s mill. The latter highway is known as Mill street. There is quite an ascent in the road as you leave Mill street to go upon East street. The traveled roadway on Mill .street separates into two tracks as it enters East street, one turning to the north and the other to the south. Between these two tracks at the junction of the two streets is a portion of the highway the surface of which is some two feet or more higher than the northerly track. This higher portion of the highway had never been used for traveling, the vehicles, as stated, passing upon cither one side or the other of it. The surface of this elevated place descends northerly and southerly towards the tracks mentioned. On the 21st of January, 1892, the plaintiff was going from Cartersville northerly along East street intending to pass down Mill street to Richardson’s mill. He had a team of horses drawing a load of 100 empty barrels, and in attempting to turn down into Mill street from East street his load was upset and he was quite seriously injured, and he brought this action to recover for the damages he sustained, alleging that his injuries were ■caused by negligence on the part of the defendant in permitting the highway to be out of repair. The trial court nonsuited the plaintiff and directed the motion for a.new trial to be heard at the general term in the first instance.

The knoll between the two tracks referred to was at the time of the accident covered with snow of the depth of from eighteen to twenty-four inches, which was lying upon the ground as it had fallen and had not been disturbed by anything passing over it. The plaintiff was perfectly familiar with the highway. lie testified that he had been driving over it all of his lifetime; had known it from the time he was a boy, and he was at the time of the accident sixty-five years of age. He knew this elevated portion of the road had never been used for driving over; that it had never been prepared for that purpose and was not intended to be used for travel. His barrel-rack was upon a pair of bob-sleighs, was twenty-one feet ten inches long, three feet and six inches wide where it rested upon the bobs, and eight feet four inches wide at the top of the rack. Plaintiff testified that when he came to the turn in the road he drove his team on past the center of the road over the knoll between thé two tracks, and attempted to draw his sleigh over this knoll between the two tracks, intending-to go down straight into Mill street, and that , as he drove his horses down the hill his load upset, falling to the "northerly. Mr. Basset, a witness sworn for the plaintiff, who resided in a house-at the head of Mill street, testified that he was standing at his window when the plaintiff drove up; that he stopped right in front of the witness’ house with a load of barrels ; that he then started tip, made his turn for down Mill street, and as his forward bobs went over the knoll they pitched off sidewise and that raised his hind bobs and threw his load right over to the north. He further testified that there were two beaten tracks, one coming-from the north going down Mill street, the other from the south, and that in between these two roads there was a spot of ground where Mr. Cleveland attempted to turn that was all covered with snow and no tracks or nothing to be seen there, even a man’s foot was not through there. The snow was from a foot and a half to-two feet deep at that place; that there »was a rise of about two-feet and a half from the wagon track on the northerly side up to the level of the middle of the road where the plaintiff attempted to drive; that there was a little bit of a hill right there, and as-the forward bob of the runner, ornear runner, I would say, struck into that, that raised the hind bob and threw him right square over into the road. The front bob dropped off there a little; that is just what carried him over. It is apparent that the plaintiff was guilty of negligence contributing to his injuries.. He was-familiar with the surroundings-; he knew the uneven condition of the highway and was aware of the ease with which his top-heavy load might be upset, and should have known that an attempt'to-drive over the place he did must almost inevitably result in overturning his load. He could as well have driven into a ditch upon the side of the road and expected his load to remain intact.

He complains of the uneven condition of the surface of the highway. He knew that the place in the road where he was driving was not prepared nor intended to. be used by the public. It is true it was in the highway, but the authorities had not, neither were they obliged to prepare the entire width of the road for the public use. There was a considerable descent from the top of the knoll to the tracks, but it was not intended for driving; such uneven places are to be found upon every country road. .It is quite common for the public authorities to prepare a track for driving in dry weather and a parallel one at a considerable elevation to be used in the rainy seasons, and it could hardly be claimed, if the plaintiff had been attempting to pass from one of such tracks to the other and had upset, the town would be held liable for damages.

The plaintiff also claims that the northerly track leading from East street into Mill street had. been encroached upon by a fence post, and that thereby the turn had been made more difficult If , so it did not justify him in driving over a place where he was almost certain to upset his load. There was evidence showing that Mr. Robbins, the owner of the land adjoining the two streets, had, by the permission of the highway commissioner, put the corner of his fence out into the old beaten track around the corner. Mill street had been used for many years, but had never been surveyed, and a record made of its location until a short time prior to the-accident. The highway commissioner had caused a survey of it to be made and located the northeast corner of the two .streets mentioned, and consented to the building of the fence mentioned, which, as stated, did encroach to some extent upon the old traveled road. We do not deem it necessary to discuss the question of the right of the highway commissioner to give permission to-Bobbins to build a fence. The plaintiff knew of the alteration of the fence; he knew that it somewhat narrowed the highway as it had been theretofore used, and concluded to make the hazardous experiment of driving over the knoll with the result stated. We-think he failed to show himself free from negligence contributing to his injuries, and that the trial court made the proper disposition of the case.

The motion for a new trial should be denied and judgment ordered for the defendant upon the non-suit.

Dwight, P. J., and Haight, J., concur.


text:
    Henry J. Negus, Pl’ff, v. Louis W. Becker et al., Def’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    Party wall—Construction of agreement.
    Plaintiff and defendants’ grantor were owners of adjoining, lots of land; that of plaintiff being seventy-three feet deep, and that of defendants’ grantor ninety. They entered into an agreement fixing the line between them and providing that plaintiff should build upon said line a foundation and wall, which should thereafter be used as a parly wall upon payment by defendants’ grantor of half the expense thereof. Plaintiff thereupon erected said foundation and wall for a distance of seventy feet, leaving a space of three feet at the rear of his lot without a wall, and defendants’ grantor paid his share thereof. Defendants having become owners of the other lot proceeded to erect a building thereon, and in doing so continued, the wall to the rear of plaintiff’s lot Held, that the reasonable construction of the contract devoted the entire length of the line to the uses of a, partition wall, and the plaintiff having failed fi r some reason not disclosed to build such a wall, was estopped from claiming that defendants were not at liberty to occupy the remaining portion with a wall.
    Motion by the defendants for judgment upon the verdict of the jury rendered at the Cattaraugus circuit in favor of the defendants by -direction of the court, subject to the opinion of the general term.

      Hudson Ansley, for pl’ff; Wm. H. Henderson, for def’ts.
   Lewis, J.

The plaintiff and one Andrew H. Krieger owned adjoining lots of land fronting upon Main street in the village of Salamanca, and extending easterly therefrom. Plaintiff’s lot was seventy-three feet in depth and Krieger’s was ninety feet deep. On the 1st day of June, 1886, plaintiff and Krieger entered into a written agreement, the material part of which is as follows : “ That said parties hereby agree upon the line between the land owned by them on Main street in Salamanca, as now established and staked off. * * * And each party agrees to release and quit-claim to the other, with the release of dower, all his right, title and interest, the said Negus to all lands lying north of said line, and said Krieger to all lands lying south thereof. It is further agreed that said Negus shall so soon as may be construct on said line a stone foundation, which line shall be the center thereof, of suitable size and dimensions to support a three-story brick building, and to erect thereon a brick wall fifteen inches thick for one story and twelve inches thick for the other. * ■» * And when so completed said Krieger shall pay to said Negus one-half the actual cost of such wall, and thereafter the said wall shall be owned jointly by the parties as a party wall. Said Krieger further agrees to pay to said Negus upon the execution of this agreement for said lands so conveyed on north side of said line two hundred dollars. And in consideration of said conveyance it is further agreed that said Negus shall put upon such south side of said wall and adjoining the same a suitable staircase, and that the same may be used by said Krieger, his agents, tenants and assigns in going to and from any building on north side of said wall; and that said staircase shall be used in common by the parties without hindrance to the other; and that said Krieger shall bear one-half expense of maintaining and repairing or rebuilding the same after same shall be so built. Witness, etc.”

Negus constructed the foundation wall extending along said line the distance of seventy feet from Main street, one-half of it being on each lot. And he used the same as the northerly foundation wall for a two-story brick building which he erected upon his lot, leaving three feet of the line easterly of his building without a wall. The parties thereafter quit-claimed pursuant to the terms of the contract, Negus to Krieger of the land lying north of the located line, and Krieger to Negus of the land lying south of the line, and Krieger paid to Negus one-half of the cost of the said stone and brick wall, and an indorsement was made upon the said contract to that effect.

Krieger thereafter, and in the month of December, 1889, conveyed his lot to the defendants, and by a written agreement transferred to them all his right, title and interest in and to the party wall built by Negus with the right to continue the wall from the rear end of the Negus wall easterly to the back end of the Krieger lot. The defendants thereupon proceeded to erect upon their lot a three story brick building, using the said division wall as the south wall of their building, and then extended the stone wall built by the plaintiff on to the rear end of their lot, covering the said three feet of the division line not built upon by the plaintiff. They completed their building three stories in height and went into possession thereof. During the construction of their building no objection was made to their occupying the three feet of land mentioned for the foundation wall. The plaintiff was not, however, during the time the defendants were constructing their building, a resident of the state, and the record does not show that he knew they were engaged in building the same.

While the contract does not in express terms designate the length of the division wall to be erected by plaintiff, it does provide that he shall construct upon said line a stone foundation wall of suitable size, etc.; the agreement evidently contemplated that the buildings to be erected were for business purposes, and that to utilize them for that purpose it. might be, and probably would be, necessary for one or both of the parties to extend his building the entire length of his lot. It would hardly be claimed by the plaintiff that he was at liberty by the terms of the contract to build a wall say twenty or thirty feet in length commencing ten or twenty feet back from the line of the street. A wall of that length would not answer the defendants’ purposes. The reasonable construction of the contract, we think, devoted the entire length of the line to the uses of a partition wall; and the plaintiff, having failed for some reason not disclosed in the evidence to build such a wall, should be estopped from claiming that the defendants were not at liberty to occupy the remaining portion of the line with a wall. He secured by the agreement the right to the use of defendants’ land for his party wall, and justice forbids that he should require the defendants in constructing their building to build the stone wall upon their own land its entire width for the space of the three feet and thereby mar the symmetry of the interior of their building.

Matthews v. Dixey, Sup. Ct. Mass., 22 N. E. Rep., 61, is an authority sustaining our construction of this contract.

The defendants’ motion for a judgment upon the verdict should be granted, with costs.

Dwight, P. J., and Haight, J., concur.


text:
    Pauline Gaul, Adm’rx, Resp’t, v. The Rochester Paper Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    1. Master and servant—Negligence—Failure to furnish safe place TO WORK.
    Plaintiff’s intestate, while at work in a small building adjoining the large building of defendant, was killed by the fall of ice from the roof of the main building, which crushed in that of the building in which he was. It appeared that a similar accident had happened some eight months before. and that defendant had constructed a new roof composed of materials strong enough to sustain any ordinary weight, but not sufficiently supported to sustain the strain caused by the falling ice. Held, that defendant failed to furnish the intestate with a safe place in which to do his work.
    3. Same—Contributory.
    The deceased was 36 y<nrs old and had been living in this country four years. Ho was not a carpenter and was not shown to have had knowledge of the construction or strength of the roof, although he had expressed a fear in relation thereto. Held, that it was for the jury to determine whether his remaining in the building under the circumstances was such negligence as to prevent a recovery.
    Appeal from a judgment entered -upon a verdict for the plaintiff and from an order denying a motion for a new trial made upon the minutes.

      George F. Yeoman, for app’lt; P. Chamberlain, Jr., for resp’t.
   Lewis, J.

This action was "brought by the plaintiff as administratrix of the estate of her deceased husband, Albert Gaul, to recover damages sustained by his next of kin by his death, caused by the alleged negligence of the defendant.

The defendant is a domestic corporation engaged in the manufacture of paper." Its mills are situate on the bank of the Genesee river below the city of Eochester, at what are known as the Lower Falls. A part of its plant consists of a three story building with a gable roof. One end of the building stands in close proximity to the brink of the falls. Between this building and another tall building belonging to another company was a space twenty-four feet wide. In this space and between the sides of these buildings there was a one story frame building, about twenty-four feet long, fourteen feet wide and fourteen feet high, occupied by the defendant with a number of heavy machines used for grinding wood into pulp.

On the morning of the 9th of March, 1892, the deceased was at work in this small building operating these machines, and while thus employed a large quantity of ice fell from the roof of defendant’s three story building upon the roof of the small building, crushed it in upon the deceased and caused his death. One side of the roof of the large building sloped towards the small building. The distance from the eaves of the large building to the roof of the low one was eighteen to twenty feet. Large quantities of spray arise from the waters as they fall over the precipice, which drift over upon the roofs of the buildings and in cold weather freeze and form coatings of ice thereon.

When a thaw comes the ice is loosened from the roofs and slides off, and so much of it as is over the roof of the low building falls thereon; this" had occurred several times previous to the time Gaul was killed. Gaul commenced working for the defendant in the small building about eighteen months prior to the time of his death. About eight months before his death ice fell from the taller building onto the roof of the small one and crushed it in, and Gaul sustained some slight injuries thereby. The defendant then covered the small building with a gable, roof, and that was the roof which was upon the building at the time of the accident, the former roof was flat. Gaul was at home recovering from his injuries at the time the gable roof was constructed.

A particular description of the materials used and the manner of constructing the gable roof was shown upon the trial. While it -was constructed of strong materials quite sufficient to sustain any ordinary weight, the evidence tended to show that it was not properly sustained from below and was entirely inadequate to sustain the strain that it was well known by the defendant it was liable to be subjected to by the falling of ice from the roof of the larger building. The ice that fell from the high building at the time deceased was killed was from four to six inches in thickness, and that which fell on the small building weighed from one to two tons. The defendant had occupied these premises for five years prior to the date in question. Its president testified that they had been troubled by the ice falling from the roof of the main building upon the lower building ever since they first occupied the premises.

There can be no question but that the defendant failed to furnish the deceased with a safe place to do the work it required of him. Counsel for the appellant does not claim to the contrary, but insists that the danger was so obvious that the deceased was guilty of negligence in consenting to work in the building under the circumstances, and this presents the serious question in the ■case.

The deceased was twenty-six years of age when he was killed. He had been living in this country but four years. He was operating the mills in this building and had the opportunity by looking at it to see the manner of its construction, but he was not a carpenter and was not shown to have had any knowledge of the construction or strength of the roof, except what he would derive from looking at it. He had a right to assume that the defendant with its superior knowledge and information would build a roof of sufficient strength to protect its employes and property from the falling ice.

He had a right to assume that so far as ordinary diligence could accomplish it the master would furnish proper structures and appliances to insure the safety of its employes. Ho especially active duty was imposed upon him to inspect the mechanism of the building with a view of determining the question of its safety. Rigdon v. Allegany Lumber Co., 87 St. Rep., 517.

John Henselman, an employe of the defendant who had charge of the pulp grinding and was deceased’s foreman, testified that Haul conversed with him a short time before the accident about the danger of the ice falling upon the building, and expressed his opinion that it would not stand it if the ice came down upon it, and said that he was afraid to stay in it.

Another witness testified that Gaul expressed fear about the strength of the roof, but said he thought he was joking when he spoke of it. Such evidence is not of the most satisfactory character, witnesses are quite apt to misunderstand such conversations and give a wrong construction to them.

We think it was for the jury to determine whether the deceased fully understood and comprehended the strength of the new roof, and whether he had sufficient information and intelligence to realize the danger of the situation. While he may have had some fears regarding it, it was for the jury to say whether his remaining in the building under the circumstances was such negligence as to prevent a recovery.

The charge of the court to the jury was very full and the law bearing upon the questions was clearly presented to them. Ho exceptions were taken to the charge.

We find nothing in the defendant’s exceptions to the refusal of the court to charge his requests, in view of what had been said in the main charge, calling for a new trial.

The judgment and order appealed from should be affirmed,

Haight and Bradley, JJ., cone


author: Bradley, J.

text:
    Charles Lachman, Resp’t, v. Elmer V. Irish, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    Statute of frauds—Promise to pay workmen of another.
    The workmen employed by a contractor refusing to work unless they got their pay, defendant, who was an insurance agent and engaged in securing loans on unfinished buildings in course of erection, told them to go on and he would see that they got their money. Held, that if this could be assumed to be an original undertaking as to work to be thereafter performed, yet, in the absence of proof of a consideration moving to defendant, it was collateral to the debt then due from the contractor for work previously performed, and hence within the statute of frauds and void because not in writing.
    Appeal from judgment of Erie county court, entered on verdict in favor of the plaintiff, and from an order denying the defendant’s motion for a new trial. The complaint alleged that the defendant was indebted to the plaintiff, also to Andrew Michel,. Richard Leadbitter, James R. Clark, Alexander Carver, Edward Lee, Elijah B. Harriman', William Lansdell, John 0. Reinhardt and Peter A. Nie severally for work, and that the said persons other than the plaintiff had assigned their claims to him. The plaintiff recovered for his work, also for that of Carver, Lee, Michel and Harriman, amounting with interest to $75.87 and costs! The defendant, by " his answer, put in issue the allegations of the complaint.

      Jonathan L. Slater, for app’lt; O. C. De Witt, for resp’t.
   Bradley, J.

The plaintiff and his assignors of the claims transferred to him, and on account of which the judgment was recovered, had, on the employment of one James C. Olmstead, performed work for him upon six houses he was building, two of them on Ferry street and the'other four on Howell street, in the city of Buffalo. The evidence on the part of the plaintiff tends to prove that- on one occasion the defendant was at the place where Michel, Harriman and Lee were or had been at work on one of the Ferry street houses, and at the time were “ laying off there, and they stated to him that they would not work any more ■until they got their pay for what they had done, and that the defendant said to them, “You go ahead, and do what is right, and 1 will see you through.” Another of the witnesses, referring to the same interview, states that the defendant said, “ What’s the matter with you boys ? ” and they said, • “ We have worked pretty nearly long enough without some money,” and the defendant then said, “ Now, you boys, go on to work and I will see you all right.’” And that, on another occasion, when the defendant and Olmstead were together, the plaintiff and Carver, who had been at work on the Howell street houses, asked for payment for their work and that the defendant said to them, “ You fellows need not be alarmed, about your money; I will see that you get it; ” that he also said that he had money in the bank and “ told us to go tight on ; that we would not lose a cent; that he would see that we got it.” All of these persons did some work on the buildings after these promises, but the time they worked, or.,the amount of compensation to which they were entitled for services thereafter performed by them does not ' distinctly appear by any evidence. The recovery was for the services performed both before and after that time.

The evidence of the promises of the defendant thus given must, for the purposes of this review, be treated as true, notwithstanding the contradiction of it on the part of the defense. And the question arises whether any valid undertaking to pay those-men was assumed by the defendant. So far as liability had accrued at the time such promises were made, the debt due to each of those workmen was that of Olmstead, by whom they had. been employed and for whom they had performed the service: The defendant was an insurance agent and engaged in the business of procuring loans, secured upon buildings in the course of-, construction from time to time as the work progressed in course of completion, for persons engaged in building them. This was-the business which first brought him to the incompleted structures - which Olmstead was erecting and attempting to complete. It is evident that the latter, not having the means to do it, was depend- - ent upon loans to enable him to proceed with the work. His de-- - fault in payment of the workmen produced uneasiness on their-part and an apparent purpose to quit unless payment was made or assured when the defendant’s promise was made. Thereupon they continued to work. If it be assumed that his promise was an original undertaking as to the work thereafter performed by these men, it was clearly collateral as to the debt then due them from Olmstead, unless there was some new consideration beneficial to the defendant riioving to him which had the effect to make his promise one to pay his own debt. Ackley v. Parmenter, 98 N. Y., 425; White v. Rintoul, 108 id., 222; 13 St. Rep., 495.. Then the doctrine of Lawrence v. Fox, 20 N. Y., 268, would be applicable in support of the promise.

It does not appear that the defendant’s promise was founded upon any consideration moving to him creating an obligation in discharge of which he promised to pay those existing debts of Olmstead. It is true he purchased of Olmstead the two Uncompleted houses on Ferry street, and it may be assumed that he did this before the promises referred to were made by him. But it does not appear what the consideration was of the sale or that it had any relation to the debts which his grantor then owed the workmen, nor does it appear how much of the debts due them arose for work performed upon those two houses after the time of his purchase. Such work was presumptively for his benefit, and from his promise to pay for it would arise an obligation to do so. Beyond that the oral promise of the defendant in its relation to work performed before it was made was collateral to the debt of Olmstead existing for it, and, therefore, was within the statute which provides that a promise to answer for the debt, default or miscarriage of another is void unless in writing, subscribed by the party to be charged with it. 2 R. S., 135, § 2.

In Prime v. Koehler, 77 N. Y., 91, the consideration moving tot-the promisor secured to him a substantial .benefit by way of .relieving his premises from the foreclosure of an existing lien upon them. The. promise was well held to be an original ■undertaking on his part. The cases of King v. Despard, 5 Wend., 277, and Quintard v. De Wolf 34 Barb., 97, approach nearer to'the support of the plaintiff's claim than any others to which our attention has been called, yet they are distinguish■able from the present case. The results there were reached upon the ground that the contracts under which the work was commenced were abandoned, and new independent and original undertakings entered into, covering its entire performance. In the case at bar Olmstead remained liable for the work which had been performed by those parties, and the evidence failed to show that the defendant had assumed the payment of it upon any consideration moving. to him which made the amount •of such liability his debt. Payne v. Baldwin, 14 Barb., 570; Weyer v. Beach, 14 Hun, 231; Belknap v. Bender, 75 N. Y., 446; Brown v. Weber, 38 id., 187.

ff it should turn out that the defendant, as consideration of the sale of the Ferry street houses to him, promised to pay. the money due from Olmstead to those workmen, he would be liable to them therefor. But that does not appear by the record before us. And no support in the evidence is seen for the recovery of the amount due for the work performed by them prior to the time of the alleged promises. This question ■was raised by exceptions to the charge, and by refusals to ■charge the jury as requested. The fact that Olmstead made a :general assignrnent for the benefit of his creditors to the defendant has no essential bearing upon any question for the purposes of this review.

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

Dwight, P. J., Lewis and Haight, JJ., concur.


text:
    The Auburn Button Co., App’lt, v. Philip L. Sylvester, Impl’d, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    .Patents—Assignment—Preference.
    Certain patents were assigned to plaintiff in 1883, but the assignment was not recorded. In 1891 the same patents were assigned to the defendant by the same assignors.- Defendant had been the superintendent of plaintiff’s works, and knew that the machines for making the patented articles were in the possession of and used by it, and upon a sale of its assets remarked that the patents were not in the sheriff’s notice, and asked one of the former owners, from whom he subsequently received his assignment, as to who was the owner of the patents, who replied that he did not know, and defendant made no further inquiry. Held, that the facts were sufficient to put the defendant upon inquiry as to the title to the patents, and he was chargeable with notice of the prior assignment, and not entitled to preference under § 4898 U. S. R. S.
    Appeal from judgment entered on decision of the court dis.missing the complaint.
    The action was brought to restrain the defendant, Sylvester, from selling or encumbering certain letters patent issued in 1882 to the defendants, E. Delevan Woodruff and J. Herman Wood-ruff, and by them assigned to the plaintiff in 1883. The improvement covered by the letters patent was useful in the manufacture of buttons from plastic material. This was within the business in which the defendants Woodruff were engaged at the time the patent was issued to them. Their firm name was Woodruff Brothers, and they were in 1883 succeeded in the business by the plaintiff, a corporation then created and organized for that puipose.
    The defendant Sylvester claims title to the letters patent by virtue of an assignment made to him in April, 1891, by the defendant E. D. Woodruff in the name of Woodruff Brothers.
    The defendant Sylvester alone defends.

      W. E. & F. E. Hughitt, for app’lt; E. C. Aiken, for resp’t.
   Bradley, J.

The claim of preference for the assignment made to the defendant Sylvester in April, 1891, over that made to the plaintiff in 1883, is founded upon the fact that the latter hadnot been recorded, and by force of the statute which provides that “ Every patent or any interest therein shall be assignable in law by an instrument in writing. * * * An assignment, grant or conveyance shall be void as against any subsequent purchaser or mortgagee for a valuable consideration without notice, unless it is recorded in the patent office within three (3) months from the date thereof.” U. S. R. S., § 4898.

The view taken of the case is such that for the purposes of this review it is necessary to consider no question other than that whether or not the defendant was chargeable with notice of the assignment of the patent to the plaintiff at the time he afterwards took the assignment made to him. He went into the service of the defendants Woodruff in 1877, and continued in their service until in March, 1883, when the plaintiff was incorporated and organized. He then went into its service and continued there until after its leviable property was sold by the sheriff by virtue of an execution issued upon a judgment against the plaintiff, which sale was prior to April, 1891.

When the plaintiff was organized it became the successor of Woodruff Brothers in the business. They and "Paul C. Woodruff were the corporators. The property incident to the business, including the letters patent, was then transferred to the plaintiff. The assignment to it of the patent was by a separate instrument made March 9, 1883. The defendant Sylvester was advised of the organization of the plaintiff, understood that it was the successor ,of Woodruff Brothers in the business, and as such he went into its service. He was also cognizant of the fact that the ■machines by which use was made of the patent in the business were in the possession of and used by the plaintiff from the time ■ of its organization.

It seems quite clear from the evidence that the defendant had knowledge of facts sufficient to put him upon inquiry as to the previous transfer of the letters patent by Woodruff Brothers, to •whom they were issued.

The evidence on the part of the plaintiff that the defendant was informed by Woodruff of the assignment of them to the plaintiff is hot to be considered upon the question, because it is in conflict with the evidence given by the defendant. He testified that, about the time the Button Company was formed he was asked by J. H. Woodruff to take stock of the company for the note he held,, which had been, given him by Woodruff Brothers for the patent,, and he declined to take the stock; that about the time of the sale,, and which he thinks was on the morning of the day the sale was made by the sheriff, of the property of the company, he saw the notice of the sale and then said to Paul C. Woodruff, who was present and the president of the company: “Woodruff, the patents are not in this notice,” and the-latter said “No,” and made no-further reply; that he called Woodruff’s attention to the fact that, the patents were not in the notice of sale because he (defendant)was interested in the patents and “ wanted to see where they were going, what was going to be done with them. He made no explanation to me why the„patents wasn’t in the notice of sale, none whatever, I gave him none. I asked him that question simply because I wanted to know whether the patent was going to be sold or not, there; ” that some time after the sale he asked J. H. Woodruff “Who owns the patent," and that he answered, “I don’t know.’? He further testified that' he did not ask him if Woodruff Brothers had assigned the patent to the Button Company. “Nothing of the kind; never asked him that question.”1 He afterward had an assignment from Woodruff Brothers to himself drawn up, and at his request it was executed by E. D. Wood-ruff in the name of Woodruff Brothers by him after inserting in it that the firm of Woodruff Brothel's had been dissolved, and that the assignee, Sylvester, was to save Him “ harmless from any suit or other liability growing out of this assignment.’^

He does not state what inquiry he made of E. D. Woodruff on the subject of the title, or that he did or not receive any information from him about it. His testimony of the interview with him-was, “I think I next made inquiry in reference to the title to this patent of E. D. Woodruff. * * * I said to' him I had inquired of J. H. Woodruff about the patent; had asked him to resign the right to me to use it and had been unsuccessful, that he had evaded my questions as to who owned the patent.”

By reference to the evidence of J. H. Woodruff it appears that he testified that the defendant came to him and inquired if he could not get the right to use the patent for himself, and the witness replied “that that could only be given by the plaintiff.”

The defendant had the position of superintendent for the plaintiff while he was in its service, and assisted in working the-patent machines. It was quite reasonable for him to suppose-that the company was using it pursuant to some right or title derived from Woodruff Brothers, its predecessor in the business; and it appears by the remark made by him when he" saw the sheriff’s notice of sale that he was apprehensive that the plaintiff had title to the patent or some interest in it. The answer which be says was given by J. H. Woodruff to the inquiry as to who then owned the patent, that he did not know, would seem to have indicated that it was not then owned by Woodruff Brothers, for if it had been he could not well have said he did not know. The answer would reasonably seem to have led to the further inquiry whether they had assigned it, and to whom, if the inquirer was faithfully in pursuit of information upon the subject.

The notice with which the facts put the defendant upon inquiry was that Woodruff Brothers had assigned the patent, and yet it seems that the defendant omitted to make any inquiry to .ascertain what the fact was in that respect.

The doctrine applicable to the subject is such that when there is some title or interest in conflict with that which a person is proceeding to purchase, and he has knowledge of facts sufficient to put him upon inquiry as to the existence of such title or interest, he is chargeable with notice of it. In such case the presumption is either that he has made the inquiry and ascertained such prior right, or that he has been guilty of such negligence as to deny to him the character of a Iona fide purchaser.

The question is in some sense one of good faith on his part. He may repel the presumption by showing that he has diligently and duly pursued the inquiry, and been unable to ascertain that any such title or interest in conflict with that which he is seeking to obtain exists. Williamson v. Brown, 15 N. Y., 354; Ellis v. Horrman, 90 id., 466. This the defendant failed to give evidence tending to prove. The fact that Woodruff Brothers had several years before assigned the patent to the plaintiff was that in respect to which the defendant was by the circumstances within his knowledge put upon inquiry. And it would seem that if he had in good faith been seeking information in that respect, he would have made an inquiry necessarily calling for .it as to that fact. His omission to do so seems somewhat significant, and to say the least was such a want of reasonable diligence as’ to permit the presumption to remain effectual against him, and to require the -conclusion that he was charged with notice of such prior assignment. As the case as settled represents that it contains all the ■evidence of the trial “ pertinent to questions on this appeal,” the record does not permit the inference that any further evidence essential to the question here considered was given on the trial.

Eor these reasons the judgment should be reversed and a new trial granted, costs to abide the final award of costs.

Dwight, P. J., Lewis and Haight, JJ., concur.


text:
    Richard N. Evans et al., Resp’ts, v. The Keystone Gas Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    ■Negligence—Leakage of gas—Evidence.
    In an action for injuries to plaintiff’s shade trees by reason of a leakage of gas from defendant’s mains in the street, evidence that similar trees for a considerable distance from plaintiff’s premises were affected in like manner is admissible as illustrative of the effect of escaping gas upon vegetation and as bearing upon the cause of injury to plaintiff’s trees.

      Appeal- from judgment entered upon a verdict at Cattaraugus circuit in favor of the plaintiff and from an order denying motion made on the minutes for a now trial.

      Charles S. Cary, for app’lt; Fred L. Eaton, for resp’ts.
   Bradley, J.

The action was brought to recover damages alleged to have been sustained by the plaintiffs in the injury to their premises situated on the east side of First street in the village of Olean by the negligence of the defendant, in that the defendant permitted its gas main laid on that street to leak and thereby destroyed three shade trees of the plaintiffs on such premises and standing near the street The defendant, to supply the inhabitants of that village with gas light and to light that street, had prior to 1886 introduced into it natural gas, and in that year to increase the supply placed beneath the surface there an eight, inch main pipe from which were extended lateral pipes as they-were wanted for the purpose of lights.

In front of the plaintiff’s residence, and along near the street,, were three maple shade trees which had been there fifteen years and had attained the size of about fifteen inches in diameter.

They are represented to have been fine thrifty trees; not only ornamental but useful to the .plaintiff’s premises (consisting of a dwelling house and lot) as a shade in the summer season. Two-of those trees died, and the life of the other one was substantially destroyed, after such larger main was put into the street. The plaintiffs charged, and evidence on their part tended to prove, that gas quite abundantly leaked from the main from the time it was placed there until it was repaired in 1889, and that in consequence of such leakage vegetation along the street was to some extent, destroyed, and to the like cause was attributed the injury to, and destruction of the shade trees in question. The evidence permitted the conclusion that such was the cause of the injury complained of, and that it was attributable to the negligence of the-defendant in its failure to put and keep its main pipe along First-street in proper condition.

The question, as one of fact, was fairly submitted to the jury,, and they found against the defendant; and their verdict is supported by the evidence. It appeared that maple shade trees on the same side of the street were, during the same period, for considerable distance from the plaintiffs’ premises, affected in like-manner. There was no error in the reception of the evidence on-that subject, as it also tended to prove that gas leaked from the-main pipe along that entire distance. It was in some sense illustrative of the effect of escaping gas upon vegetation, and in that view was competent as bearing, so far as it might, upon the cause-of the injury to the plaintiffs’ trees. The inquiry proceeded further by evidence to the effect that after the leakage of this main pipe was stopped by repairs in 1889 the difficulty with vegetable life and growth along the street ceased, and while, before then, for several years the plaintiffs were unable to make young trees along there survive, thereafter they lived and were thrifty.

Tne exceptions to the reception of evidence bearing upon the. question of damages were not well taken. It may be assumed that the rule in that respect applicable to this case was the difference in value of the premises with and without those shade trees. Dwight v. E C. & N. R. R. Co., 132 N. Y., 199; 43 St. Rep., 723.

The evidence upon the subject mainly was within that rule.

There was, however, in the early stage of the trial an inquiry made on the part of the plaintiff calling for an estimate of the ■ value of the trees destroyed on the plaintiffs’ premises.

The objection to the reception of the evidence was not placed upon a tenable ground, and for that reason the exception requires no consideration.

Hone of the exceptions appearing in the record have the support of error in the ruling to which they were taken.

The judgment and order should be affirmed.

Lewis and Haight, JJ., concur.


author: Dwight, P. J.

text:
    Annabella Babbage, Adm’rx, App’lt, v. Edward Webster, Adm’r, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    Decedent’s estates—Costs.
    The court may, in its discretion, award costs as in an action against the plaintiff' in a reference of a claim against the estate of a deceased person whenever the complaint is dismissed for any cause. The rale established by §§ 1835, 1836 of the Code relates only to costs against the defendants in such proceedings and does not affect the award of costs against the plaintiffs.
    Appeal by the plaintiff from so much of an order of the Monroe special term of March, 1893, as allowed costs as in an action to the defendant, on confirmation of the report of a referee, in a reference under the statute.

      C. H. Gorham, for app’lt; R. C. Webster, for resp’t.
   Dwight, P. J.

The proceeding was on a claim against the estate of a deceased person, which was referred by consent under the statute. 2 R. S., 88, 89, §§ 36, 37; Birdseye, 1132, §§ 179, 180.

The report of the referee shows that after the appointment for a hearing, the case was adjourned from time to time at the instance of the plaintiff, and that on the last adjourned day no> evidence was offered on the part of the plaintiff, and the proceeding and claim were accordingly dismissed. The court at special term confirmed the report of the referee and ordered judgment in favor of the defendant dismissing the claim, with 'costs. It is from the latter provision, only, of the order that this appeal is taken. It is clearly not well taken. The award of costs in these proceedings is entirely controlled by two statutory provisions, one of which is that .cited above, from the Revised Statutes; the other is contained in §§ 1835 and 1836 of the Code of Civil Procedure. The provision of the Revised Statutes, 2 R S., 89, § 180, supra, is that the court may confirm the report "of the referee ‘‘and adjudge costs as inactions against executors,” and the provision of the Code, referred to, establishes the rule as to ■costs in actions against executors. But it is to be observed that the rule relates only to costs against the defendants in such actions and does not affect the award of costs against the plaintiffs. The provision is, in effect, that only when the plaintiff’s demand is duly presented and either payment is unreasonably resisted or ■neglected, or reference is refused, can costs be awarded against the executor or administrator, and it is these facts as to presentation, resistance of payment and refusal to refer which must be ■certified by the judge or referee who tried the case.

There is, therefore, nothing in the two provisions of the statute, taken together, with limits the discretion of the court to award full costs to the defendant as against the plaintiff in the proceeding by reference like the present, and all the cases cited by counsel for the appellant requiring a certificate of the referee as a condition of the award of costs are cases in which judgment was in favor of the plaintiff "and the question was as to the award of costs against the executor or administrator defendant. Ely v. Taylor, 42 Hun, 205; 5 St. Rep., 127; Mersereau v. Ryerss, 12 How. Pr., 300; Morgan v. Skidmore, 3 Ább. N. C., 92; Schenck v. Rickaby, 14 N. Y. Supp., 444.

There is no doubt of the discretion of the court to award costs as in an action against the plaintiff in a proceeding like this whenever the complaint is dismissed for any cause.

The order must be affirmed.

Order appealed from affirmed, with ten dollars costs and disbursements.

Lewis and Haight, JJ., concur.


text:
    The Rochester Distilling Co., Pl’ff, v. Stewart L. Devendorf, Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    Judgment—Payment—Satisfaction.
    A satisfaction of a judgment by direction of the plaintiff without the intervention of an order of the court is prima facie evidence that it was paid. Its legal effect is the extinguishment of the debt.
    Motion by the plaintiff for a new trial on case and exceptions ordered heard at the general term in the first instance, after a non-suit at the circuit

      George D. Reed, for pl’ff; Walter Welch, for def’t.
   Lewis, J.

The defendant purchased of the plaintiff on the 27th day of" January, 1891, a bill of liquors of the value of $251.73. The plaintiff recovered a judgment in the supreme court against the defendant for the purchase price of the goods on the 27th day of June, 1891. An execution was issued thereon to the sheriff which was returned unsatisfied in whole. Proceedings supplementary to execution were thereafter instituted against the defendant. The plaintiff having learned that the defendant, before the recovery of said judgment, had sold and transferred the goods to his wife, Mary M. Devendorf, commenced an action ■ against her for the recovery of the possession of the goods. All of the goods sold were embraced in the complaint and were taken by the sheriff, with the exception of goods amounting in value to eighty dollars, which the sheriff could not find. After the commencement of the said replevin action and before the recovery of judgment therein, the plaintiff, having learned that Devendorf obtained the goods by false and fraudulent representations as to his responsibility, on the 21st of September, 1891, ■caused the said judgment against Devendorf, obtained as aforesaid for the purchase price of the goods, to be discharged of record, by filing with the clerk of the county where the judgment was docketed a certificate in writing executed by the plaintiff directing the •clerk to satisfy the said judgment of record; and the clerk thereupon did satisfy the judgment of record. And thereafter this action was commenced, the plaintiff alleging in its complaint "that the defendant obtained said goods from the plaintiff through fraud and deception with the intent not to pay for them, and with the intent to cheat and defraud the plaintiff out of the same, and ■claimed damages in the sum of eighty dollars, being the value of the goods not obtained in the replevin action. The defendant answered, among other things setting up as a bar to the action the pendency of the replevin action against Mrs. Devendorf, .¡and also the judgment recovered against the defendant for the purchase price of the goods, and alleged that the debt was fully paid, satisfied and discharged.

Plaintiff gave evidence tending to establish the allegations of its complaint, that the goods were obtained by fraud, and that it was ignorant of the fraud when the action for the purchase price •of the goods was commenced. The pendency of the replevin ■notion, and the recovery and docketing of the judgment for the purchase price of tire goods, and the discharge thereof by the clerk by direction of the plaintiff, were duly proven when the plaintiff rested its case, and the trial court thereupon nonsuited the plaintiff and directed the case to be heard in the first instance at the gen-oral term.

The nonsuit was granted upon the ground that the plaintiff having brought an action for the possession of the goods thereby dis-affirmed the sale and stood upon its rescission, and could not thereafter maintain an action upon the theory that the title to the property passed to the defendant upon the sale, thereby divesting the plaintiff of its title herein. It may well be doubted if the nonsuit was put upon the proper ground. The plaintiff had in its action against Mrs. Devendorf recovered onlj^partof the property, and sought by this action to recover the damages sustained by the fraudulent conduct, of the defendant in obtaining possession of its property by fraud. The plaintiff simply claimed to recover the damages which it had sustained by the fraud of the defendant, and the damages were the value of the property which it had failed to obtain in its replevin action against Mrs. Devendorf. Whether such an action under such circumstances can be maintained has been the subject of much discussion in our courts. We see no reason upon principle why it cannot be sustained. It was held in Powers v. Benedict, 88 N. Y., 605, that, “ A vendor of goods, the sale and delivery of which was induced by fraud on the part of the vendee, does not by an effort to retake the entire property, which is successful in part only, lose the right to pursue the vendee for the value of the unfound portion. Nor is the effort a defense to an action to recover possession against one in whose-hands a part 'is found.” Equitable Co-operative Foundry Co. v. Hersee, 103 N. Y., 25; 3 St. Rep., 100; Hersey v. Benedict, 15 Hun, 282; Sleeper v. Davis, 64 N. H., 59; Farwell v. Myers, 59 Mich., 179.

But the plaintiff was properly non-suited for the reason that the judgment for the purchase price of the goods having been paid became a bar to this cause of action. Caylus v. N. Y., K. & S. R. R. Co., 76 N. Y., 609.

As we have seen, plaintiff recovered a judgment for the entire purchase price of the goods, and can recover nothing more in this action. It is not entitled to two judgments against the defendant for the purchase price of the goods. All of the plaintiff’s claims arising out of the sale of the goods presumptively were merged in the judgment it obtained for the purchase price, and the judgment having been satisfied by the direction of the plaintiff without the intervention of an order of the court, it was prima facie evidence that it was paid. All this evidence, as we have seen, was in the case when the plaintiff rested, and there /was an entire absence of any evidence tending to remove the presumption of payment. If for any reason the satisfaction of the judgment was voidable, an order of the court vacating it should have been obtained. Crotty v. McKenzie, 42 N. Y. Supr. Ct., 201. Until set aside the satisfaction of the judgment was prima facie evidence of a payment. Its legal effect is the extinguishment of the debt Kerr's Appeal, 104 Pa. St., 282 ; 2 Black on Judgments, § 1015.

The satisfaction of a judgment may be explained or perhaps contradicted by parol evidence. The plaintiff having failed to introduce any evidence explaining the satisfaction of the judgment, was not entitled to recover.

The motion for a new trial should be denied, and judgment directed for the defendant on the non-suit

Dwight, P. J., and Haight, J., concur.


author: Haight, J.

text:
    Louis F. French, Resp’t, v. Frank Aulls, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    Master and servant—Negligence.
    Plaintiff was employed by defendant to operate a circular saw in his mill. This saw, when not iñ operation, was held back against a beam by a rope which passed over a pulley and had weights attached. Plaintiff had operated it for two seasons. On the occasion in question he pulled the saw forward and then let it slam back, when the rope broke and allowed the saw to swing forward, severing his hand. The machine was of the ordinary construction and was open and visible to plaintiff, and he could see the rope, which showed no signs of weakness, and it appeared that he had added weights to it and knew as much about it as defendant. Held, that as he had equal knowledge with defendant he could not recover for the injury.
    Appeal from, a judgment in favor of the plaintiff entered ■upon a verdict of the Steuben circuit, and from an order denying a motion for a new trial made upon the minutes.

      J. F. Parkhurst, for app'lt; C. W. Kimball, for resp’t.
   Haight, J.

This action was brought to recover the damages which the plaintiff has sustained by reason of the loss of his arm. On the 4th day of April, 1890, he was in the employ of the-defendant engaged in his mill operating a circular saw. The saw was in a frame hung over a table by means of a hinge. When in a perpendicular position the lowest point of the saw was slightly below the top of the table in a narrow slit. It was used for sawing slabs into wood. In the rear of the saw there was a beam; and the saw, or frame in which it was placed, was held back against the beam by means of a rope running over a pulley having upon the end thereof a weight. To operate it a slab was placed upon the table against a straight edge; and then the saw, or frame in which it was running, was pulled forward by means of a handle until the slab was severed, then eased back to its position until the slab could be moved forward. It was the custom of the defendant to run his mill during the spring, summer and fall and then shut it down during the winter. The plaintiff had operated this saw for two seasons and was engaged upon the third. On the day in question he had pulled the saw forward, cutting a slab in two, and then let the same back against the beam, and in doing so the rope broke, allowing the saw to again swing forward severing his hand from the arm whilst he was engaged in removing the slab from the table.

It is claimed that the defendant was negligent, first, by reason of the character of the machine furnished for the work; second, by reason of his not having a hood over the saw; and third, by reason of a defect in the rope. In reference to the first charge of negligence it appears that the machine was of the ordinary construction of machines used for that purpose; that others of the-same kind were in use and had been for many years; that it was open and visible to the plaintiff. Under these circumstances he must be regarded to have assumed the risk and perils incident to its use in accepting employment to operate it, notwithstanding the fact that there are now other and safer machines in use. In the-case of Sweeney v. Berlin & Jones Envelope Co., 101 N. Y., 520, it was held that when a servant enters into the employment of a master to operate machinery used in his business of a certain kind or condition, and the servant knows it, he voluntarily takes the risk resulting from its use and can make no claims upon the master to furnish other or different safeguards ; that a master may carry on his business with an old machine not provided with all the safeguards attached to new machines. See, also, Hickey v. Taaffe, 105 N. Y., 26; 6 St. Rep., 426; De Forest v. Jewett, 88 N. Y., 264; Appel v. B., N. Y. & P. R. Co., 111 id., 550; 20 St. Rep., 90 ; White v. Witteman Lithographic Co., 131 N. Y., 631; 43 St. Rep., 312.

As to the second charge, it appears that in some of the mills hoods are placed over the saw, but that they only cover it in part. The lower part of the saw which comes in contact with the slab has to be left open. It appears that the plaintiff's arm was cut off by the lower part of the saw as he was removing the slab from the table. It is not, therefore, apparent that the accident would not have happened had there been a hood over the saw.

The" serious charge arises in reference to the rope. The proximate cause of the accident was the breaking of the rope. The rope had been put on new the season before, and it continued in use the subsequent season. It had been the practice of the defendant to put on a new rope each spring, but he had neglected to do so this spring. It appears that the rope was in plain sight, and was often seen both by the plaintiff and defendant; that ithad no broken strands or appearance of weakness. On the day of the accident the plaintiff observed that the rope was a little natter at the point where it passed over the pulley, but discovered nothing further in reference to its defective condition. It appears that the plaintiff knew as much about the rope as the defendant; that he knew of the time of its use; that he placed it upon the" machine and fastened the weights to it; that he changed them several time's, putting on heavier weights, and that it was constantly" before his eyes when he was operating the saw. The defendant had no other or different knowledge in reference to it. It consequently appears to us that he is brought within the rule of servants having equal knowledge with the master as to the character of the machinery in use. In the case of Marsh v. Chickering, 101 N. Y., 396-399, it is said by Miller, J.: “As "a general rule it is to be supposed that the master who employs a servant has a better and more comprehensive knowledge as to the machinery and materials to be used than the employe, who has claims upon bis pr-otection against the use of defective or improper materials or appliances 'while engaged in the performance of the service required of him. The rule stated, however, is not applicable in all cases; and where the servant has equal knowledge with the master as to the machinery used, or the means employed in the performance of the work devolving upon him, and a full knowledge of existing defects, it does not necessarily follow that the master is liable for injuries sustained by reason of the use thereof.” In 2 Thompson on Negligence, 1009, the rule is tersely stated as follows : “ The master is under no higher duty to provide for the safety of the servant than the servant is to provide for his own safety. It follows that if the knowledge or the ignorance of the master and that of the servant in respect to the character of the machine are equal, so that both are either without fault or in equal fault, the servant cannot recover damages of the master.” Carlson v. The P. B. Co., 132 N. Y., 273-278; 43 St. Rep., 942; Dingley v. Star Knitting Co., 134 N. Y., 552; 48 St. Rep., 336; Wright v. N. Y. C. R. R. Co., 25 N. Y., 562-566.

A serious question is presented in reference to the plaintiff’s contributory negligence. It appears that the iron tied upon the end of the rope weighed from twenty-five to thirty pounds; that after the saw was pulled forward, cutting the slab in two, that if it was allowed to go back suddenly the weight would carry it against the beam with considerable force. The plaintiff tells us that he held to the handle until the saw was eased back part way; that then he would let go and pick up the slab that had been sawed off. The defendant’s witnesses testified that on the day in question he let the saw slam back against the mill with such violence as to jar it, and as to sound like a sledge hammer. The plaintiff denies this, but concedes in his testimony that it would make some noise; that he could not say how hard it went back; that it would go back against the wall; that he was in a hurry, etc. The fact is undisputed that the rope broke over the pulley as the saw was let back against the beam. We can readily see that if the saw was allowed to spring back against the beam under the force given by the weight upon the rope of twenty-five pounds or upwards, that it would cause a sudden jerk and produce a strain upon the rope much greater than it would be if the saw was quietly eased back to its place of rest. The trial court submitted this issue to the jury. Perhaps the evidence is sufficient to warrant such submission. We prefer to rest our decision upon the question of the plaintiff’s possessing equal knowledge with that of the defendant.

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

Dwight, P. J., and Lewis, J., concur.