text:
    Louis Bracco, Resp’t, v. James G. Tighe, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 12, 1894.)

      1. Contract—Mutual promises.
    A promise by one to give another party the exclusive privilege of furnishing laborers on a certain work is a sufficient consideration for the latter’s promise to pay the former a fixed sum per month for each stipulated number of men so employed.
    2. Same—Waives.
    If one party, with full knowledge of the other’s inability to keep one1 portion of the contract, requests and accepts performance under the other' part, such conduct, of itself, constitutes a waiver.
    Appeal from a judgment entered on a verdict directed by the: court.
    The complaint alleges the agreement to be as follows:
    “ Whereas, James G. Tighe, of the city of Brooklyn, has the' privilege of furnishing the labor required- on section two of what is known as the “ Water Extension on Long Island for the City of Brooklyn;” and whereas, work thereon will probably commence between the 6th day of March, 1890, and the first day of May, 1890; and whereas, five hundred or more men will be required on said work, and some will continue for probably two, three, or more years: Now, in consideration of the premises, it is agreed by and between said Tighe and Louis Braceo, of the city of New York, that the said Braceo shall have the exclusive right to supply all the laborers needed on said work, and shall have the sole and exclusive right to board and to lodge said-laborers, and for that purpose shall erect, at his own expense, the necessary buildings upon the grounds where said work is to be performed, and at his own expense furnish the necessary food, fire1 and light for their maintenance. And it is agreed, upon his part,, he shall supply and furnish only good and able-bodied men, and to the number required by the contractor, at the agreed wages of one dollar and fifty cents per day; that said Braceo shall pay to the said Tighe, every month, the sum of fifty dollars for each one hundred men to employed,which shall be -in full for all- his interest in supplying said laborers as aforesaid, and all other sums of money arising therefrom shall belong to said Braceo alone. And it is further agreed, by and between said parties, that no other person shall have the privilege of furnishing any laborers on said work so long as the said Braceo shall supply good and suitable men, to the satisfaction of the contractor, therefore; that the said Tighe will not permit, in so far as he can prevent the same, any person locating upon the grounds of said work for the purpose of providing board and lodging for the laborers employed thereon; and the right of said Braceo to discharge any laborers who shall board at any place other than that provided by said Braceo, or who shall act disorderly, shall be absolute. And it is further agreed, by and between said parties, that the term of this agreement shall apply to any other work for which the said Tighe shall have the privilege of supplying labor; that any violation of the covenant of this agreement by either party thereto shall render the same void.
    “In witness whereof, the said parties have hereunto set their hands and seals at the city of Brooklyn, this 6th day of March,. 1890.
    “In presence of Benette F. Martella. J. G. Tighe.
    Louis Braceo.” ■

      The answer does not put in issue any of the allegations of the complaint, but it avers, by way of counterclaim, the making of a contract embracing the same subject-matter as the one set up in the complaint, which it alleges was made in October, 1889, and under which it avers performance on the part of defendant to such an extent that it alleges there became due to the defendant, by reason thereof, the sum of $1,558.50, and demands judgment against the plaintiff in the sum of $958.50 over and above plaintiff’s claim, with interest. The cause coming on for trial, the allegations of plaintiff’s complaint not being denied, the defendant assumed the affirmative for the purpose of establishing his counterclaim. At the close of his testimony the counterclaim was dismissed, and judgment directed for plaintiff in the amount claimed in his complaint.

      Jumes M. G. Smith, for app’lt; Herman Frank, for resp’t.
   Parker, J.

The allegations of the complaint were not put in issue by defendant’s answer and it follows that the court rightly directed a verdict in favor of plaintiff, if it be true that defendant had failed, when he rested his case, to establish his counterclaim. Wo motion was made to dismiss the answer on the ground that it did not properly allege a counterclaim, and the evidence presented by the defendant to establish it was received without a single objection on the part of the plaintiff. Whether, in view of the fact that none of the allegations of the complaint were put in issue by the answer, some portions of the evidence might have been objected to and excluded, we do not determine. Wo occasion is presented for a consideration of that question. We are only to inquire, in view of the manner in which the trial was conducted by both parties, whether, at the close of defendant’s testimony, he had so far established the counterclaim alleged in his answer, or some portion of it, as should have led the court to have denied the motion to dismiss. On this appeal we must, in disposing of that question, deem all contested facts as established in favor of the appellant, and the most favorable inferences to be drawn from the evidence must be assumed in his favor. Galvin v. Mayor, etc., 112 N. Y. 223 ; 20 St. Rep. 569. The defendant testified (and in such respect lie was supported by the witness Martella, who acted as the interpreter in the transactions had between plaintiff and defendant) that in Noverriber, 1889, an agreement which, with the exception of the date is in the same language as that set up in plaintiff’s complaint, was executed by the parties, and witnessed by Martella ; that subsequently it was engrossed, and on the 2d day of December, two days later, an engrossed copy was executed by the same parties and in the presence of the same witness. These executed writings-were both received in evidence. Defendant testifies that a third paper, which is the same as the others, with the exception of the date, and a copy of which is set up in plaintiff’s complaint, was made and executed at the request of the plaintiff, who assigned, as a reason for the request, that he was in trouble with two men who claimed to be his partners; that lie then had a suit pending for the purpose of securing a decree dissolving the partnership; and that he wanted a new agreement made so that for the subsequent privileges which should be afforded him through the defendant, of obtaining work for laborers to be employed by him, there should be no opportunity for his alleged partners to claim the right to share in the profits which might ensue. For his accommodation, and because of such request, defendant caused another copy of the agreement then in force to be made, and executed by himself and the plaintiff, the only change being in the date. From his testimony, and that of the witness Martella, it appears that the $600 which plaintiff sued to recover was paid at the time of the execution of the first agreement. It was paid with the understanding that it was on account of an advancement required to be made in order to obtain the right to furnish laborers on section 2 of what is known as the “ Water Extension on Long Island for the Oity of Brooklyn.” That privilege was never obtained, as provided by the agreement. But there was another provision in the agreement, by which it was provided that the terms of the first provision should apply to any other work for which the defendant should have the privilege of supplying labor. Under it, the plaintiff obtained, through the defendant, the privilege of suppling laborers to section 7 of the waterworks, running from Maverick to Eockaway. The contractor testified that at defendant’s request he permitted the plaintiff to furnish the Italian laborers, and that the number furnished by him averaged 250 al month for a period of about seven months. The defendant and Martella each testified that plaintiff admitted to them that such a number of men were employed by the contractor through him. In the latter part of April and May, defendant having obtained the privilege of furnishing laborers at St. Johnland, he tendered the right to furnish them to the plaintiff, as by the agreement he bad promised. Plaintiff accepted the offer, and put 80 men at work there. Later, and in August, defendant obtained the privilege of furnishing laborers in some quarries in Connecticut, and this he tendered to the plaintiff, who accepted it. Without a more extended review of the evidence, it is sufficient to say that under the last provision of the agreement, defendant obtained and furnished to the plaintiff the privilege of supplying laborers under at least three different contractors.

The point is made that it does not appear that plaintiff was permitted to furnish all the laborers, but only a portion of them, in the instances where he accepted privileges from the defendant. It does appear that other men than those furnished by him were employed on section 7, but those men were more skillful than the laborers of the class furnished by the plaintiff.. The contractor, when asked whether plaintiff had furnished all the laborers, said: “Yes; he furnished all Italian laborers. The other men employed were mechanics.” We think the evidence on that subject presented a question for the jury whether there was not a substantial performance of the agreement in such respect.

It was urged on the motion to dismiss the counterclaim, "and again here, that the agreement was without consideration. This contention is without force. The promise of the defendant to give the plaintiff the exclusive privilege of furnishing laborers at $1.50 per day on the work named, and all other work where he should have the privilege of supplying labor, was the price for which the promise- of the plaintiff was bought to pay defendant $50 a month for each 100 men so employed. The consideration was executory, the counter promise, and not performance, constituting the consideration.

And, the contract being founded on a good consideration, there remained for the defendant to show substantial performance on his part as a basis for the recovery of any sum claimed, or at least substantial performance of everything he had promised to do which the plaintiff had not waived. Now, the agreement represents the parties as having in mind a desire and intention to include within it (1) provisions relating to all the laborers to be employed on section 2 of “ Water Extension on Long Island for the City of Brooklyn; ” (2) all labor to be employed on any other work for which defendant should obtain the right to furnish ■laborers. While the specific work which was first made the subject of agreement was probably the inducing cause of the making of the contract, and not unlikely may have been regarded by both parties as of more moment than the other, still, the other provision was substantial, and, although it occupies but a few printed lines, the provisions of the clause preceding it are so incorporated into and made a part of it that it must be treated as if written substantially in these words:

“ Now, in consideration of the premises, it is agreed between the parties that Braceo shall have the exclusive right to supply all the laborers needed on any work for which Tighe shall have the privilege of supplying labor, and shall have the sole and exclusive right to board and lodge' such laborers. * * * And it is agreed that Braceo shall supply good and able-bodied men, and to the number required by the contractors, at the agreed wages of $1.50 per day; that said Braceo shall pay to the said Tighe, every month, the sum of $50 for each one hundred men so employed, which shall be in full for all his interest in ■supplying said laborers as aforesaid, and all other sums of money arising therefrom shall belong to said Braceo alone.”

Now, it may well be that these two subjects of agreement are so far interdependent that a refusal to perform either would absolve the other party from any obligation to pay for that which had been performed and accepted without knowledge on the part of the accepter of the inability of the other contractor to make full performance. Still, the two subjects are so far divisible that if performance be waived, by the party entitled to demand it, as to one provision, and accepted as to the other, a recovery may be had under the contract for that which was performed. Further, if, with full knowledge of defendant’s inability to keep one portion of the contract, plaintiff requested and accepted performance under the other, such conduct, of itself, constituted a waiver. According to the testimony of the defendant and his witness, it appears that after the making of the first contract, in November, 1889, the defendant, under the second provision in the agreement, gave to him the privilege of furnishing laborers under several contracts ; that he accepted the offers, and made no objection that he was not accorded, under any one of them, all of the rights which it was the purpose of the contract to secure to him; that on several occasions defendant requested him to bring in his accounts, showing the number of men employed to the end that a settlement might be had between them, and defendant promised, each time, to do so on the next visit. It also appears that after the defendant had failed to obtain the privilege of supplying labor under § 2 of the waterworks, which was the subject of the first provision of the agreement, he informed plaintiff of it, who, instead of declaring the contract at an end, and asserting that there was such failure of performance on the part of defendant as denied to him the right of recovery for the privileges which he had furnished, continued to accept the benefits which the defendant secured to him under the second provision of the contract, and, in one instance at least, accepted from him the privilege of furnishing laborers on a work in which he had not before been engaged. In the light of these facts, the court cannot say, as a matter of law, that the plaintiff did not waive any right he may have had to insist upon full performance under both provisions of the agreement, as a condition of recovery. There was such a performance under the second provision as at least presented a question for'the jury whether it was not substantial. The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event.

All concur.


source: Caselaw Access Project

author: Follett, J.

license: Public Domain

text:
    Otto J. Lang, Resp’t, v. Houston, West Street and Pavonia Ferry Railroad Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 12, 1894.)

    Executob, etc—Ancillaby.
    An ancillary executor may sue to recover damages by reason of death from wrongful act.
    Appeal from judgment entered on a verdict in favor of plaintiff.

      Henry A. Robinson, for app’lt; G. W. Hopkins, (D. Edgar Anthony, of counsel), for resp’t.
   Follett, J.

This action was brought to recover damages arising from the death of plaintiff’s testator, caused, it is alleged, by the negligence of the defendant’s employes. At about five o’clock and fifteen minutes in the afternoon of March 9,. 1892, Mason Hirsch, in attempting to cross from the east to the west side of Broadway, was knocked down by the horses drawing one of the defendant’s cars , and so injured that he died within forty-eight hours thereafter. But two witnesses were sworn on the question of the negligence of the defendant’s employes and the contributory negligence of the decedent. Mr. Scheuer, who was engaged in business on Broadway, and familiar with the rate of speed of horse cars in that street, testified that just before the accident he signalled the driver of the car which injured the decedent that he wished to board it, but the driver refused to stop, and indicated that he should take another car, and urged on his horses, which were in the language of the witness, “going ata terrific rate of speed.” Mr. Baylor, a lawyer having an office on Broadway, was riding on this car, and stood by the driver at the time of the accident. He testified that the horses were being driven “ at a very fast rate of speed that they were galloping most of the time going up Broadway, and, in his opinion, they were traveling at the rate of twelve miles an hour. He describes the accident as follows : “ Just before the horses struck him, [Hirsch] I saw the driver didn’t notice him, and I caught the driver, and grabbed hold of his reins, and then he instantly saw him, and he put the brake on, and tried to stop. ” Ho witnesses were called by the defendant as to the rate of speed of the car, or to contradict or explain the evidence given in behalf o£ the plaintiff, and, without quoting it, we think there was sufficient to justify the jury in finding that the car was moving at a rate of speed which, in that crowded thoroughfare, was negligent, and also the driver was negligent in not observing the decedent in time to avoid the collision. The decedent was crossing Broadway at or near a street crossing, and the car, approaching from the south, was signalled by a person who wished to take it; and it was not, as á matter of law, negligent in the decedent to fail to observe that the car was moving at more than twice the usual rate of speed of horse cars on Broadway, nor was it negligent for the decedent to assume that the driver would obey the customary signal of a person desiring to take the car. The evidence justified the jury in finding that if the car had been moving at the usual rate of speed of horse cars on Broadway, or if the driver had obeyed the signal of Scheuer, who tried to take passage, the decedent would have crossed in safety; and we think the evidence was sufficient to authorize the jury to find that the decedent did not, by his negligence, contribute to the accident.

The decedent, at the time of his death, was a resident of the city of Philadelphia, in the state of Pennsylvania. He left a widow and six children, who are his next of kin and heirs. He left a will which was duly admitted to probate March 24,1892, in the state of Pennsylvania, and letters testamentary were issued to Mina Hirsch, his widow, Henry Hirsch and Alfred G. Hirsch, two of his sons. September 10, 1892, ancilliary letters were granted by the surrogate of the city and county of Hew York to the plaintiff, a son-in-law of the decedent. It is insisted in behalf of the appellant, that section 1902 of the Code of Civil Procedure gives a right of action only to “ the executor or administrator of a decedent ; ” but does not confer a right of action on an ancillary executor. This statute is a remedial one, enacted to compel those who negligently cause the death of persons to compensate the sur» viv’ng husband, widow, or next of kin of the person so killed; and, like all such statutes, should be so construed as to give, instead of witholding, the remedy intended to be provided. Lamphear v. Buckingham, 33 Conn. 237 ; Haggerty v. Railroad Co., 31 N. J. Law, 349. The important part of the section is that which gives a right of action, and not that part which provides who may enforce it, which is an incidental provision. There is nothing in the words of the statute, nor in the circumstances attending its enactment, from which it can be inferred that the legislature intended to give a right of action in case the person killed was a resident of this state, or left property in this state. The words of the statute are: “ The executor or administrator of a decedent '* * * may maintain an action to recover damages.” These words are broad enough to include ancillary executors or administrators, and nowhere in the sections relating to this subject are there found words indicative of an intent to exclude ancillary representatives, nor is there any reason, that we can see, why they may not maintain an action, unless we hold that the statute does not apply to persons killed who are not residents of this state. Section 2702 of the Code of Civil Procedure provides that all of the provisions of chapter 18 of the Code (except the fifth title, which relates to the distribution of a decedent's realty) “relating to the rights, powers, duties and liabilities of an executor or administrator, apply to a person to whom ancillary letters are granted.” Section 1902, being a part of chapter 15, and not of chapter 18, is not within the express terms of section 2702, but by the broad powers conferred by that section upon ancillary representatives it is evident, we think, that the legislature intended to give them every right of action conferred upon executors or administrators, except those specially excepted. We think the intention was to give damages to the surviving husband, widow, or next of kin, enforcible by the person who, for the time being, represented in this state the estate of the decedent.

The j udgment should be affirmed, with costs.

ALL concur.


author: Per Curiam.

text:
    In the Matter of the Estate of Theodore Scheidler, Deceased.

      (Supreme Court, General Term, First Department,

      Filed January 12, 1894.)

    Executoes, etc.—Legacy.
    Though an action by the administrator is pending in the supreme court for a construction of the will, the surrogate may order him to pay a legacy.
    Appeal from an order directing payment of a legacy.

      John Branden, for app’lt; Henry Schmitt, for resp't.
   Per Curiam.

It appears that this will was admitted to probate on November 30. 1886, and that the administrator failed to account until compelled to do so by order of the surrogate, dated November 11, 1892. Upon such accounting, the administrator, if he had desired a construction of the will, could have had the proper parties brought in, and the will construed, and there was no necessity for the filing of a bill in the supreme court for that purpose, the evident object of wdiich, in view of his delay and failure to serve the necessary parties, was to secure additional delay. Under these circumstances, we think the surrogate was entirely justified in directing payment of the legacy, notwithstanding the pendency of the action for the construction of the will ; particularly as it appeared that the plaintiff had not taken any steps even to serve most of the defendants in the action. The order appealed from should be affirmed, with costs and disbursements.


text:
    Cornelius H. Tallman, as Executor, etc., Resp’t, v. Adolph Bernhard, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 12, 1894.)

    Costs—Demurrer.
    Upon sustaining a demurrer, the demurrant is entitled to costs, except in a single case under § 3333 of the Code.
    Appeal from so much of an interlocutory judgment as refused to allow costs on sustaining a demurrer to the complaint.

      Carlos C. Alden, for app’lt; James M. Smith, for resp’t.
   Per Curiam.

The court, in sustaining the demurrer, erred in refusing to grant the demurrant costs. There is only one exception to the rule ■ that costs are absolute where a demurrer to a complaint in a common law action is sustained, and that is furnished by § 3232 of the Code, which provides that where an issue of law and an issue of fact are joined, and the issue of fact remains undisposed of, it is in the discretion of the court to deny costs to either party, or award costs, either absolutely, or to abide the event. So much of the order and interlocutory judgment as refuses to allow costs should be reversed, with $10 costs and printing disbursements.


author: Pratt, J.

text:
    Margaret L. Thomas, App’lt, v. Mary Smith, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February, 1894.)

    1. Libel—Chap. 340 of 1890,
    The person, in making the statement, need not procure it to be published or take an active part in its publication, in order to be guilty of a misdemeanor under chap. 340 of 1890; but making the libelous statements and thereby securing the publication thereof are sufficient.
    3. Same.
    All engaged in knowingly publishing a libel are principals.
    3. Slander—Per se.
    A charge of disturbing a religious meeting is slanderous, per se.

    4. Evidence—Judicial notice.
    Courts will take judicial notice that a camp meeting is a religious meeting.

      William J. Nicholson, for app’lt; Josiah T. Marean, for resp’t.
   Pratt, J.

This is an appeal from a judgment entered on dismissal of the complaint, on a motion made after the jury had been impaneled, and before the case was openéd, upon the ground that the complaint failed to set forth a cause of action.

It was in effect a demurrer. As matter of law, defendant had a right to make such a motion, but the practice is hot to be coin-mended as a careful and deliberate method of securing justice upon a trial Had a demurrer been interposed, plaintiff’s counsel ■would have been apprised of the fault (if any) in his complaint, and had time to prepare for argument or take measures to cure the defects in his pleading.

The complaint is as follows, to wit: First. That the plaintiff is a married woman, the wife of Mr. Harry Thomas, and is a woman of standing and respectability in the community and among her neighbors where she is 1 nown. Second. That as plaintiff is informed and believes, the defendant, with intent to injure and defame plaintiff in her domestic and social relations, on or about the tenth day of August, 1892, in the city of Brooklyn, stated and declared and spoke to and in the hearing of a representative of the Weekly Newspaper, published weekly in Brooklyn, in the vicinity were plaintiff resides, and of sundry other persons, that she (meaning this plaintiff) was intoxicated at a camp meeting, held an evening or two prior, that “ she (meaning plaintiff) caused a disturbance at the meeting, and that she had to be put out by a policeman.” That said statements by defendant were absolutely false, and were made maliciously by defendant to have same published, and to malign and disgrace this plaintiff. That said false statements against plaintiff, so publicly made by defendant, have been published as intended by defendant, and by the reason of the acts of the defendant aforesaid, and of her said statements, and the publicity secured by defendant to spread same in said community, and through a newspaper, plaintiff has thereby been caused great trouble and anguish in mind and body, and has been put to legal and other expense in refuting and denying defendant’s said calumnies; all this to her damage in the sum of ten thousand dollars.

It is necessary, in the first place, to see what the complaint charges.

It not only charges slanderous words spoken, but more, it charges an unlawful act on the part of the defendant by and from which the plaintiff has suffered damage.

It is generally conceded that where a person does an unlawful act which results in a particular injury to a person, the latter has a remedy by action. That unlawful act was stating to a newspaper man, a reporter, libelous matter concerning the plaintiff, and thereby securing the publication thereof (chap. 840, Laws of 1890). Is there any doubt that the publication was secured thereby ? The statute does not say that the person, in making the statement, must procure it to be published or take any active part in its publication in order to be guilty of a misdemeanor, but that making the libelous statements, and thereby securing the publication thereof.

I also think the complaint charged a libel. Suppose a person went into a newspaper office, and dictated to a stenographer, for the purpose of having it published, libelous matter, would not he be liable for setting the libel in motion ? It is not necessary that he should write it out: he is as much a principal in the matter as the editor or publisher $ more guilty, in fact. A libel was published and all engaged in it knowingly were principals, and the complaint sufficiently so charges, especially setting out the part played by the defendant.

Neither do I regard it as clear that a good cause of action for slander is not set out in the complaint. Defendant charged that the “ plaintiff was intoxicated at a camp meeting, held an evening or two prior.” “ That she (meaning the plaintiff) caused a disturbance at the meeting, and that she had to be put out by a policeman.” The respondent seems to concede that disturbing a religious meeting is slanderous, per se, but says it is not alleged that a camp meeting is a religious meeting. I venture to say that not one person in ten thousand in this community in hearing the expression “ camp meeting ” would think the term meant anything but a religious meeting. Words in slander suits must be given their common and popular signification.

It would not have been stretching judicial authority much if the court had taken judicial notice that a camp meeting was a religious meeting, under the well established rule that courts will take notice of what ought to be generally known in the limits of their jurisdiction. At all events, a simple amendment would not have surprised the defendant and would have been in the furtherance of justice. That the defendant appreciated fully the complaint is apparent from the fact that she duly filed her answer, in which, among other matters , she pleaded substantially the truth of the libelous charges in justification. Considering all these facts we do not think the order of dismissal ought to have been granted.

We think the plaintiff should have been allowed to proceed with her case and amend if necessary. A trial is meant to be a fair struggle after the truth, and not a rivalry in shrewdness or a trap for the unwary. Salisbury v. Howe, 87 N. Y. 128. The plaintiff had stated facts and conduct on the part of the defendant that were willful, unlawful and malicious, and the court was bound to give her such relief, when proved, as the laws required.

The judgment must be reversed and a new trial granted, plaintiff to have leave to amend, without costs.

Dykman, P. J., and Cullen, J., concur.


author: Yan Brunt, P. J.

text:
    Hugh O’Reilly et al., as Executors, etc., App’lts, v. The New York Elevated Railroad Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January, 1894.)

    1. Elevated bailway—Injunction.
    The courts will not enjoin the operation of a public work, executed under legal authority, on the ground that a private right has been interfered with, which cannot be compensated for in money because it has no pecuniary value.
    3. Same.
    There is no ground for such action, if the resulting benefits more than compensate for the inconvenience which the improvements have caused.
    Appeal from a judgment dismissing the complaint.

      L. L. Delañeld, for app’lts; R. L. Maynard, for resp’t.
   Yan Brunt, P. J.

This action was brought by an owner of property abutting upon Ninth avenue for an injunction to restrain the defendant from maintaining and operating its railroad on said avenue in front of the premises of the plaintiff, and to recover damages for alleged past injury due to the maintainance and operation of the road. Upon this appeal, the judgment roll only being presented, the sole question open for discussion is whether .upon the facts found, the plaintiff was entitled to greater relief than he obtained, which was a judgment dismissing the complaint,, without costs.

The learned referee before whom the case was tried found that the defendant, under authority duly received, constructed, maintained and operated its railroad, and that defendant was also invested with power of eminent domain and was authorized to-acquire any real property needed for such railroad upon payment of just compensation; that the bed of Ninth avenue in front of the-premises in suit is owned by the mayor, aldermen and commonalty of the city of New York, and the plaintiffs have never had any private right or easement therein other than the easements of light, air and access appurtenant to said premises; and that the said-easements appurtenant to the plaintiffs’ land, taken for the said railway uses, in and of themselves, apart from any consequential damages to said land from said taking, have only a nominal value.

Th.e referee also found that by the railroad structure, and the operation of the road thereon, the light and air which the plaintiffs’ premises would-otherwise have received have been to some extent cut off, and that said premises have also suffered from the dirt, cinders and smoke caused by the erection and continued maintainance and operation of the road, which have rendered the-plaintiffs’ premises for dwelling purposes less comfortable than they would otherwise have been ; that said railway and stations-afford frequent and easy transit, and the traffic in the said avenue in the vicinity of the premises'in suit is thereby increased, and produces a general benefit in which the plaintiff’s property participates ; that the fee value of the plaintiff’s premises has increased since the construction of the defendant’s road, and the property is-of greater value to-day for business purposes than at any time prior to the construction of the same; that there has been no disparity-between the rate of increase in value experienced by the property in question and other property in the vicinity off the line of the elevated road as would justify the conclusion that the property in question had failed to share in the general increase of values which is shown to have taken place in respect to all real estate in that vicinity ; and, further, that plaintiffs have failed to show that the fee or rental value of the premises in suit has been decreased by the acts of the defendant.

Upon these facts the plaintiffs claim that they were entitled to injunctive relief, although they failed to show that they had sustained any monetary damage by the interference of the elevated railroad with the easements appurtenant to their lots.

Our attention has been called to certain authorities to sustain this proposition, notably the cases of Smith v. City of Rochester, 38 Hun, 612 ; and Corning v. Troy Iron and Nail Factory, 40 N. Y. 191, and also to certain decisions in the elevated railroad cases. Those decisions, however, fail to support the contention which has been urged upon this court by the appellants.

In the cases of Smith v. City of Rochester and Corning v. Troy Iron and Nail Factory, supra, it is true that without the proof of pecuniary damage it was held that an injunction would lie; but in those cases it is to be observed that the party who was engaged in the trespass was doing so without legal right; and, therefore, it was entirely immaterial as to whether damage was occasioned or not; he could not gratify his whims or cater to his interests at the expense of his neighbor. But in the case at bar a very different state of facts exists. It is found by the referee that the construction of the road was under authority of law, and that in the prosecution of this work they had infringed upon certain easements appurtenant to the lot of the plaintiffs which had no value in themselves. Now the principle upon which actions of this nature have been maintained by the courts is that where, by the legal construction of a public work, interests belonging to private parties in the neighborhood of the work have been interfered with, the court will enjoin the prosecution or operation of the work until compensation in money is made for the damages sustained by reason of the interference with these easements. But where such interference has caused no damage, then the very foundation for a judgment in an action of this description is not established. The court will not enjoin the operation of a public work executed under legal authority, simply because some private right is trespassed upon which cannot be compensated for in money because it has no value. It is upon this theory that the courts have laid down the rule that in all cases of consequential damage, the benefits which result from the work must be deducted. In such actions .resulting damages are sought to be recovered; hence, resulting benefits, the courts have held, may be deducted. So in the ease at bar, although these easements may have been interfered with, if the resulting benefits have more than compensated for the inconvenience which the improvements have caused, there is no ground for an action of this character. If this railroad had been built without authority of law an entirely different question would be presented, as in the cases cited; but being by authority of law, and existing and being operated by like authority, it cannot be enjoined except by some person who has suffered pecuniary injury for which he is entitled to compensation.

We think, therefore, that the learned referee was correct in the judgment dismissing the complaint, and that the same should be affirmed, with costs.

O’Briem and Parker, J.J., concur.


text:
    The People ex rel. Frederick S. Heiser, App’lt, v. Edward Gilon et al., as Assessors, etc., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed January, 1894.)

    1. Taxes—Chap. 729 of 1872.
    The board of assessors, acting- as such under chap. 729 of 1872, is not required to take a separate oath of office in a proceeding thereunder.
    2. Same—Statement.
    The statement, required by this act, is only a statement of the gross amount of the damage, and that such amount was to be awarded.
    8. Same—Cobpobation counsel.
    It is not error for the assessors to call upon the corporation counsel for advice as to the manner in which they should perform their duties or that one of his assistants appeared before them and advised them.

      4. Same—Damage.
    The relator is to be compensated as the owner of the building and not as the owner of the land.
    5. Same.
    The damages caused by the changes of the grade and plan of .improvement, and not by all the changes from the original grade, are to be compensated for.

      Certiorari to review an assessment and award made by the board of assessors under a special act of the legislature (chap. 729, Laws of 1872).
    For prior reported decisions in this claim, see 67 Hun, 652 (n); 51 St. Rep. 825; 22 N. Y. Supp., 238 ; 104 N. Y, 68 ; 29 Hun, 446 ; 5 St. Rep. 558; 64 N. Y, 634 mem.; 16 Hun, 407; 121 N. Y, 551; 47 Hun, 639; 31 St. Rep. 890.

      H. M. Whitehead, for app’lt; Wm. H. Clark, counsel to the corporation, (and J. M. Ward, of counsel), for resp’ts.
   Yan Brunt, P. J.

The relator is the executor of Christina E. Smith, who, from the year 1857 until the time of her death in 1874, was the owner of certain premises bounded by the westerly side of Eighth avenue, the northerly side of Ninety-first street and the southerly side of Ninety-second street, in the city of New York. This property consisted of a plot of 21 lots upon which a dwelling house and outbuildings stood. There were, from time to time up to 1875, changes of the grade of Eighth avenue authorized, the last of which was by chapter 593 of the Laws of 1870, the grade, under the provisions of this act, being considerably lowered.

In May, 1872, an act was passed entitled “An act in relation to Eighth avenue in the city of New York,” being chapter 729 of the Laws of 1872. The act is as follows:

Section 1. The board of assessors of the city of New York are hereby authorized and directed to assess upon the property intended to be benefited by the regulating, grading and improving the Eighth avenue, between Fifty-ninth street and One Hundred and Twenty-second street, the amount of damage or injury which each owner of a building or buildings erected on land fronting on said avenue or street has or will sustain or suffer by reason of such changes of grades and plan of improvement of said avenue heretofore authorized or directed to be made by the legislature or any officer or board in the city of New York, and shall make and file in the finance department of said city a just and equitable statement and award of the amount of such damage, loss or injury to the owner or owners of such building or buildings on lands fronting on such street or avenue, and opposite thereto and affected by such change of grade,and the amount of such award shall be included in the expense of regulating, grading and improving said avenue, and with such expense for regulating, grading and improving said avenue, shall be assessed, as provided in and by the one hundred and seventy-fifth section of the act of April 9, one thousand eight hundred and thirteen, entitled An act to reduce the several laws relating to the city of New York into one act.

“Sec. 2. The comptroller of the city of New York is hereby authorized and directed to issue assessment bonds of said city to pay the amount of such loss or damage so assessed by said board of assessors, together with such an amount as may be necessary to pay the expenses or costs that have been, or may hereafter be, necessary for the regulating, grading and improving said avenue.”

In June, 1891, the present claim of the plaintiff was presented to the board of assessors and certain proceedings were thereupon had; and on the 6th of May, 1892, the assessors filed in the office of the comptroller the assessment made by them of the amount of damage or injury sustained by the relator resulting from the change of grade or plan of improvement of said avenue theretofore authorized and directed to be made by the legislature or any officer or board in the city of New York. The relator, feeling himself aggrieved by said assessment, has brought this certiorari to review the proceedings of the board of assessors.

Various objections are made to the regularity of the proceedings of the board of assessors, and also to the neglect of said board to take into consideration proofs offered by the relator upon the question of the damage sustained by him.

It is first urged that the return fails to show that the board was sworn to act as a judicial body, and that, therefore, it had no jurisdiction, and that, as the duties and powers under this act were not those prescribed by the Consolidation Act of 1882, their general oath of office was not sufficient to comply with the law. But no such objection was taken to the proceedings before the board of assessors; and the relator, after having submitted himself to the jurisdiction of the board, cannot now be heard to raise the objection that they were not sufficiently sworn. But we are of.opinion that this board, acting as a board of assessors, were not required to take a separate oath of office in this particular proceeding.

It is further urged that the board have not complied with the law and filed the statement therein required. It is admitted that the paper filed is good as an award. But it is claimed that it is in no sense a statement. It is a familiar rule in the construction of statutes (and one which is invoked by the relator upon this appeal) that the principle which is to control is the intention of the legislature in passing the same, which is to be ascertained from the cause or necessity, of the statute as well as other circumstances.

“A strict and liberal interpretation is not always to be adhered to, and where the case is brought within the intention of the makers of the statute, it is within the statute, although by a technical interpretation it is not within its letter. It is the spirit and purpose of the statute which are to be regarded in its interpretation; and if these find fair expression in the statute, it should be so construed as to carry out the legislative intent, even although such construction is contrary to the literal meaning of some provision of the statute.”

Now, upon an examination of the statute in question, it will be seen that by the use of the word “statement,” in addition to the word “award," there was no intention to enlarge the ordinary duties of the assessors in determing the amount of an award or. assessment by compelling them to file a bill of particulars. The" term used is “a just and equitable statement and award of such damage, loss and injury,” etc. It is evident that it was not the intention that particulars should be given, but a statement of the gross amount of the damage, and that such amount was to be awarded. Therefore the award which was filed by the board of assessors with the comptroller seems to have been a compliance with the statute.

It is further urged that it was error upon the part of the assessors'to call upon the Corporation Counsel for advice in respect to the manner in which they should conduct their duties, and because one of his assistants appeared before them and advised them. ' And it is urged that this was improper because the city was one of the parties to the proceeding. The Corporation Counsel is the legal adviser of the Board of Assessors, and the city was not a party to this proceeding. It is true that the Comptroller was authorized to issue assessment bonds for the amount of the award. But the amount was to be assessed upon the adjacent property, and it was supposed that the money would be realized again by the city, so that in reality the city was only advancing the amount of the award against assessments to be subsequently collected which had been levied upon the adjacent property, in order that the same might be reimbursed. We do not think that there was any ground to complain of the action of the board in applying to the Corporation Counsel for his assistance in the conduct of the special duty which was imposed upon them by this act of the legislature.

It is further urged that the board did not estimate and award all the damages to which the relator was entitled under the proof. And here we think the relator is entirely mistaken in reference to the scope of the act under which this assessment and award were being made. As already intimated, in the construction of the act, the intention of the legislature must govern. The act in question was a special one, not in the ordinary course of legislation; and seems to have been passed in order that the relator might be reimbursed' for some special damage which he had suffered by reason of the change of grade which had occurred in front of the property owned by him. It is claimed upon the part of the relator that the expenses in relation to the lands owned by him, caused by the change of grade, were to be included in the assessment. We do not think that this is the intention of the act. It is not the landowner who is to be reimbursed, but the owner of buildings erected upon the land; and it was the intention of the legislature to reimburse for the damage to the buildings, not the damage - to the land. It was certainly not their intention that, because the owner of a block of land had a house of small value erected thereon, he should be reimbursed for all that it cost him to bring his lots down to the grade, whereas upon the next block, because there was no building thereon, the expenses might be much greater, and yet no reimbursement could be made. The legislature never intended any such inequality in reference to compensation. It is apparent that all they did intend was that the damage to the building should be provided for. This is the provision of the act. It was as the owner of the building that he was tobe compensated, and not as the owner of the land. And this seems to have been the error in the extravagant claim which the relator presented to the Board of Assessors—one of the items of which is the expense of taking the dirt away from his lots, and the next the building of a retaining wall to keep it there.

It is further urged upon the part of the relator that all the damages which might be sustained by reason of the change of the natural grade were to be included. We do not think that the act bears this construction, but rather that the damages caused by the changes of the grade and plan of improvements, i. e., change from the first plan of improvement, were to be considered; and that the word “ change ” qualified both grade and plan of improvement, and that, therefore, it did not mean that all the changes from the original grade should be compensated for. This act, as already stated, is a special one, unusual in its provisions, and should not be enlarged against the evident intent of the legislature.

These suggestions seem to us to dispose of most of the objections to the amount of the award. It may be that we are wrong in this construction, and that the relator has been inadequately compensated for the result of the change of grade. But we cannot see how any other construction can be placed upon the act without giving preferences, which it is never to be assumed the legislature intended.

We think that the proceedings should be affirmed, with costs.

O’Brien and Parker, JJ., concur.


author: Dwight, P. J.

text:
    Frederick W. Smith, as Executor, etc., Pl’ff, v. George E. Bown, Def't.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

      1. Insurance—Mutual benefit—Liability.
    A person, by becoming a member of a mutual benefit association, organized under chap. 175 of 1883, contracts a liability to pay dues and assessments which can be enforced at law.

      2. Same—Assessment.
    Where a certificate of membership requires the periodical payment of a certain sum of money by the member, such payment is not an assessment within said act.
    Submission, without action, of a controversy under § 1279 of the Code.

      Wm. De Groff.¡ for pl’ff; P. M. French, for def’t.
   Dwight, P. J.

The controversy here submitted is between the receiver of a dissolved co-operative assessment insurance company, organized under chapter 175 of the Laws of 1883, and one of its members, and presents the question whether, by becoming such member, the defendant contracted a liability to pay dues and assessments which can be enforced at law; or whether, on the other hand, his liability^ was limited to a forfeiture of his membership on his neglect or refusal to pay. The question, of course, is one of contract, and the inquiry is, what was the contract between the parties? The only reported case in this state in which the question of liability to pay was directly adjudicated was that of McDonald v. Ross-Lewin, 29 Hun, 90, which was a case in our own department in 1883. In this case the court found a contract to pay, and held the member liable to an action to recover the first of the assessments on which he made default; but held that his default at the same time worked a forfeiture or termination of his membership, and that he was not liable to pay any further assessments. The defendant’s application in that case contained the clause': “ And in case a certificate is granted on the statements and good faith of the above declarations, I hereby agree to accept and pay for the same, subject to all the conditions of the by-laws and regulations of the association.” The only other case in this state in which the question of the member’s enforceable liability to pay assessments was considered, though not involved in the action, was that of In re Globe Mut. Ben. Ass’n, 63 Hun, 263 ; 43 St. Rep. 756. The question there presented was whether it. was competent for associations of this character to insure infants. It was held not competent, and (by a majority of the court, in an opinion by O’Brien, J.) for the reason that there was necessity for a mutual contract between the association and the member, of which the infant was incapable ; and the case of Ross-Lewin, supra, was cited as authority for the proposition that there is a contract on the part of the member to pay his assessments upon which an action will lie. Yan Brunt, P. J., dissented from the ground of tire decision above stated, and expressed an opinion that the member assumed no obligation to pay, but that the extent of his liability was to forfeit his membership for non-payment. In affirming the judgment of the supreme court, the court of appeals, in the language'of Andrews, J., said: “We place our assent to the judgment below on the ground that it appears from a consideration of the statute of 1883, and the nature and object of co-operative insurance companies, and the relation which members hold to the corporation, that adult persons only were contemplated as or entitled to be members.” Matter of Globe Mut. Ben. Ass'n, 48 St. Rep. 398. It is nut made clear what the court considered to he the relation which members hold to the corporation, but. the decision certainly does not condemn or disapprove the views-held by the majority of the court below, nor the conclusion of the' court in the case of Ross-Lewin, supra. The latter case, therefore, stands so far unquestioned as authority, and we feel ourselves-bound to follow it so far as the facts of this case bring it within the reasoning and the rule there adopted.

The only question here is, therefore, was three in the contract between the association and the member in this case a promise, either expressed or reasonablyto be implied, to pay the assessment, so called, which is in question in this action ? And the-first remark we feel inclined to make is that the payment in question was not in'any true or proper sense an assessment at all, but a regular bi-monthly due ; the amount and time of payment of which were fixed at the outset by the contract between the parties, and which was to remain constant and unchanged throughout the whole term of the defendant’s membership. It bore no resemblance to the “ mortuary” assessment which was required to be levied on the occasion of the death of a member to provide means to pay his certificate. The payment in question was required only of members of “ Glass B,” which seems to have been an addendum, rather imperfectly tacked onto the original scheme of the organization. The provision for it is found in article 20 of the by-laws and is as follows : “Sec. 4. Assessments will be levied on the first working day of February, April, June, August, October, and December of each year ; and will fall due on or before the first of the month following, and based on the following; ” and here follows a table of “ rates,” from which it appeared that the regular bimonthly payment required of the defendant (determined by his age and the “ number of shares ” held by him) was $5.60. Here, it is apparent, was no “ assessment ” to “ levied” on the bimonthly dates above mentioned, but that, by whatever process the amount was arrived at, it was done once for all when the by-law and the-accompanying table were adopted.

Looking further for evidence of a contract to pay on the part of the member we find that section 1 of article 15 of the by-laws prescribes the form and contents of the certificate of membership, and, among other things, that “ it shall contain the specified terms of the agreement or contract between the association and the member to whom it is issued; ” and, turning to the certificate itself issued to the defendant, we find its first clause to be as follows : “ For and in consideration of the representations made to it in the application for the certificate, and the sum of twenty-five dollars to it in hand paid, and the further sum of five dollars and sixty cents to be contributed bimonthly, * * * do hereby constitute George G. Bown * * * a member of this association, in class B.” Here was, unquestionably, sufficient evidence of a contract obligation on tbe part of the defendant to pay the bimonthly $5.60,—whether it be called an assessment or a due,—to bring the-case within the doctrine of the case of Ross-Lewin.

The further question is raised by the submission, whether the notice given to the defendant of the time and amount of the payment in question, was sufficient under the requirements of the statute (Act 1883, supra). We think that what we have already said in respect to the character of the payment is an answer to the. objection to the notice. The provision of the statute referred to is as follows:

“ Each notice of assessment made by any corporation, or society, transacting the business of life or casualty insurance or both, upon the co-operative or assessment plan, made upon its members, or any of them, shall truly state the cause and purpose of such assessment. And shall, also, state the amount paid on the last death claim paid; the name of the deceased member, and the maximum face value of the certificate or policy, and if not paid in full, the ■reason therefor.’’

The notice given to the defendant served the useful purpose of reminding him of the nature of the payment required, the amount to be paid, the day of payment, and the consequences of.his failure to pay. It did not conform to all the requirements of the statute, and we think it need not, for the reason that the payment called for was not an assessment within the meaning of the statute, and to give it the name of an assessment did not bring it within the statutory provisions. It was, so far as we can see, to all intents and purposes a bimonthly premium, subject- to no change of amount or date of payment during the continuance of the membership, unaffected by death losses or other vicissitudes of the business, and which the defendant had contracted to pay in consideration of the issuance of the certificate to him. We think the case was within the doctrine of McDonald, v. Ross-Lewin, supra, in respect to the obligation to pay, and that it is not within the purview of the statute in respect to notice of assessments and, therefore, that judgment should be given to the plaintiff for the amount of the so called assessment, with interest from September 1, 1891, but without costs, since costs are expressly disclaimed by both parties to the submission.

So ordered.

All concur.


author: Bradley, J.

text:
    George W. Stamp, Resp’t, v. Augustus W. Franklin, as Executor, etc., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    1. Fobmbb adjudication—Pbivitt.
    Where a wife could not and did not recover upon one of the claims litigated in her action, her judgment is not res adpidicata as against her husband.
    2. Same—Estoppel.
    His testifying in favor of his wife in her action upon such claim, does not estop him from maintaining his action thereon.
    Motion for a new trial on exceptions taken at circuit and ordered to be heard at general term in the first instance.

      Spicer & Morris (John Gillette, of counsel), for pl’ff; John H. Johnson, for def’t.
   Bradley, J.

The action was brought to recover for board alleged to have been furnished by the plaintiff to the defendant’s testatrix from the 5th day of November, 1884, to the 10th day of January, 1889. The defendant, among other matters of defense alleges former adjudication of the same subject-matter in an action by Edna M. Stamp against the same defendant She is the wife of the plaintiff, and was called as a witness for him, and when she was asked to state whether she and her husband had a ■conversation with the testatrix prior to the time they went to her house, on the subject of going there, objection was taken on the ground that, being the plaintiff’s assignor, she was not competent to testify to the conversation with the decedent.' Thereupon, the plaintiff asked leave to amend his complaint by striking out the ■allegations of assignment by him to his wife, • and of reassignment by her to him, of the alleged claim. The amendment was allowed and made against the objection of the defendant, and exception taken. It is difficult to see the purpose of those allegations in the complaint, since, if the plaintiff’s right to assert the claim in his own behalf was dependent upon an assignment by his wife to him, she was incompetent to give evidence of any conversation she had with the testatrix in relation to it. If no such assignment had in fact been made, there was no error in making the correction that was made of the pleading by the -amendment. The defendant did not ask for any "postponement of the trial by reason of the amendment. By reference made to the former action, which will hereafter be more particularly mentioned, it does not, nor did it on the trial of this action, appear that any assignment by the plaintiff to his wife had been made of the claim, or necessarily appear that she had made any assignment to him. The trial of the present action proceeded upon the assumption that he was the original creditor of the testatrix.

The main question urged by the defendant arises upon the alleged former adjudication as a bar to recovery. It appears that an action was commenced in this court by Edna M. Stamp, the wife of the plaintiff, against the same defendant, for alleged services performed for the defendant’s testatrix, and for board furnished to her, and that, as appears by the report of the referee in that action, she recovered for services $1,482.25, and for board $1,148.26, and judgment was directed and entered for $2,631.05, besides costs. On review by the general term the judgment was reversed, and a new trial granted, unless the plaintiff should stipulate to deduct from the recovery $1,-148.40, and in that event the judgment, as so modified, was affirmed . Stamp v. Franklin, 12 N. Y. Supp. 391; 35 St. Rep. 828. The plaintiff so stipulated, and the judgment was modified accordingly. Thus, it appears by the record in the former action that an amount equal to that included in the judgment for the board and supplies was eliminated from the judgment. Thereupon, this action was commenced by the plaintiff to recover the claim for the board and supplies, the amount for which it is asserted was excluded from the judgment recovered by the wife. This was matter within the cause of action alleged in the complaint in that action, and was there litigated. It is the general rule that a judgment of a court of competetent jurisdiction is final, not only as to the subject matter there actually determined, but as to all other matters which the parties might there have litigated and had determined. If. therefore, it can be said that the claim in question was properly the subject of litigation and determination between the parties in the former action, it must be deemed a bar to recovery in the present one. But to constitute a former adjudication, strictly as such, the actions must be by or between the same parties or their privies. That was not necessarily so .in this instance, since no privity, in that sense, exists between the plaintiff in that and this action, as no right of action in the wife was founded upon any assignment from the husband, nor is his founded or dependent upon assignment from her. The law of the case, as held by the court on the review, was that the claim for the board and supplies was not due to the wife, but was that of the husband, the present plaintiff, and that she was only entitled to maintain the action for her certain services performed for the testatrix. If, for that reason, she could not and did not recover in that action for such claim, that judgment was not res adjudicaia. Stockwell v. Chamberlain, 60 N. Y. 272. It does not appear that there was any evidence on the trial of ’Mrs. Stamp’s action that she furnished provisions for the board in question, and on trial of this action there is evidence tending to prove that they were furnished by the plaintiff. He and his wife were living together in the house of the testatrix, where she also resided, and there she took her meals, which constituted the board in question. Nothing appearing to the contrary, it may be assumed that the plaintiff furnished the supplies for the table, and his wife had charge of the housework. Upon that state of facts, the plaintiff, presumptively at least, was, and his wife was not, entitled to recover whatever was due from the testatrix for the board and provisions there furnished to her.

But it is suggested that because the plaintiff aided, by his evidence and otherwise, the prosecution of the action of his wife for the recovery of the claim which is the subject of this action, he is estopped from maintaining his action against the defendant. This, clearly, would be so, if she had recovered for that claim in her action ; and the effect would have been the same if the testatrix, with his consent, had paid his wife the amount of it in her lifetime. Reynolds v. Robinson, 64 N. Y. 589, 594. But, although the amount of the claim was included in the judgment entered upon the report of the referee, it was excluded from the final judgment in that action; and therefore no prejudice results to the defendant, from the prosecution of this action, to enable him to effectually assert estoppel as a defense. In that fact is the difference between this and the case of Van Koughnet v. Dennie, 68 Hun, 179; 51 St. Rep. 877. There, ip the former action, the claim for which it was brought was overcome by a counterclaim ; and in that way the plaintiff had the benefit of it, and to its extent the defendant's counterclaim, was reduced. It was therefore very properly held that, by the assistance of the plaintiff in the second action in the prosecution of the former one by her husband for the same cause, she was estopped from maintaining her action. The conclusion fairly permitted in the case at bar was that the plaintiff in the former action had no right of action for the recovery of the claim which is the subject of the present action, and consequently the final judgment there is no bar here.

At the close of the evidence, each of the parties asked the court for direction of a verdict, and the defendant’s counsel requested the court to submit to the jury the questions whether the plaintiff was owner of the claim, and whether it had not been adjudicated in the other action, “ and whether the plaintiff, by agreement with his wife, had not consented to her having the claim, and bringing the action upon it in her own name.” This was refused, and verdict directed for the plaintiff, and exceptions were taken. There was no error in these rulings. It quite clearly appeared that the plaintiff had consented that the claim be paid to his wife, and to the bringing and prosecution of the action to recover it; but this did not confer on her a right of property in it, for the purpose of recovery in an action contested in that respect by the defendant, And, for the reasons before stated, there was nothing for the jury on the question of former adjudication. The case is here upon exceptions only. For want of any further requests to do so, the court was not required to submit any question of fact to the jury. Ho other exceptions require consideration. The motion for new trial should be denied, and the plaintiff have judgment upon the verdict

All concur.


text:
    George H. Thornton, Resp’t, v. James C. Rogers, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    Appeal—Weight op evidence.
    A verdict, based upon the testimony of the plaintiff alone, who is contradicted by a disinterested witness, and by his own letters, is not supported by a fair preponderance of the evidence.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the court.

      J.. G. Rogers, in pro. per.; John Laughlin, for resp’t.
   Dwight, P. J.

The defendant, daring the session of the senate of this state in the year 1890, contested the seat of the sitting member for the sixteenth senatorial district. The plaintiff was the official stenographer of the senate, and of the committee of privileges and elections, to which the defendant’s contest was referred for investigation. During or at the close of the taking of testimony by the committee, the plaintiff furnished to the defendant a copy of the minutes of the proceeding; and in October, 1891, this action was commenced, in which, by his original complaint, he claimed to recover, only on a quantum meruit, the sum of $680 for such copy. Issue was joined by an answer and an amended answer of the defendant, and he made an offer of judgment for $225, which was not accepted. At the opening of the trial the plaintiff was permitted to amend his complaint by inserting an allegation of a special contract of the defendant, by Mr. George B. Wellington, his counsel in the legislative proceeding to pay the plaintiff, for the copy of the minutes to be furnished to him, at the rate of twenty cents a folio. To maintain the affirmative of the issue thus made, the plaintiff gave no evidence, except by his own testimony. He testified that the investigation was commenced in the latter part of January, 1890 ; that, after the first two or three sittings of the committee, Mr. Wellington applied to him to be furnished with a copy of the minutes ; that he agreed to furnish them at twenty cents a folio ; and that he did so,—having a copy of the testimony taken up to the time transcribed, and furnished to Mr. Wellington,—and after that furnished him with copies as the investigation proceeded. He denied any recollection or belief that he ever received any letter from the defendant himself on the subject of furnishing the copy to Mm or his counsel, and he reiterated more than once his statement of the manner in which the copy was furnished,"—once in the following language, on cross-examination f “ Yes, sir; I say that I furnished the testimony along in detached parts,—a session at a time as a rule.” The testimony thus given was met on the part of the defendant by the testimony of Mr. Wellington, who positively denied that he ever applied to the plaintiff for a copy of the testimony ; that he ever promised to pay him twenty cents a folio for such a copy, or ever had any conversation with him on the subject. By the testimony of the defendant, to the effect that in the latter part of March, and after the case for the contestant was closed, he wrote a letter to the plaintiff, informing him that Mr. Wellington desired a copy of the stenographer’s minutes, for the purpose of making his brief for argument, and that if he (the plaintiff) had prepared copies of the minutes, and would send one of them to Mr. Wellington to be used for the purpose mentioned, it would be returned to the committee, with the brief, at the close of the case ; that the next day he received a letter in answer from the plaintiff. The letter of the plaintiff was produced and put in evidence. It was as follows :

“ Albany, March 21, 1890.
“ Gen. James 0. Rogers—Dear Sir : Your favor of yesterday is at hand. I will have prepared, and send to Mr. Wellington, a copy of the proceedings thus far taken, as you request. Yours truly,
[Signed] “George H. Thornton.”.

The foregoing statement contains the substance of the material evidence in the case, upon the submission of which to the jury a verdict was rendered in favor of the plaintiff. The defendant moved for a new trial upon the ground, among others, that the verdict was contrary to the evidence, and his motion was denied.

We think the motion was well founded, and that its denial was error. The plaintiff held the affirmative of the ■ issue, and was bound to suppoi’t it by a fair preponderance of the evidence, or fail of a recovery. To that purpose his own testimony stood alone. It was uncorroborated by any evidence in the case, either direct or presumptive. He was interested in the result of the action, to the full extent of the recovery sought. Be was fully contradicted,' upon the question directly in issue, by the testimony of a disinterested witness, and by the well-nigth conclusive presumption to be drawn from his own letter to the defendant. It is not easily credible that he should have written that letter in answer to the letter of the defendant, the receipt of which he acknowledges, if he had already concluded a bargain with the defendant’s counsel to furnish him copies of the minutes at a price agreed upon, and especially if, as he repeatedly testifies he had already been engaged for nearly two months in furnishing the counsel with those copies, from day to day, of the sessions of the committee. We understand the reluctance with which a judge at the circuit, who has once submitted a case to the jury, interferes to set aside the verdict, when it is rendered in response to such submission, but that some times it may be his duty to do so cannot be doubted, and this even in a case where his denial of a motion for a nonsuit was not error ; for, as was said by Allen, J., in Colt v. Sixth Ave. Railroad Co., 49 N. Y. 71, the evidence may be sufficient in law to sustain a verdict, although so greatly against the apparent weight of evidence as to justify the granting of a new trial. See, also, Adsit v. Wilson, 7 How. 64, 66; Smith v. Aetna Life Ins. Co., 49 N. Y. 211; Mulligan v. N. Y. C. & H. R. R. Co., 11 N. Y. Supp. 452 ; 33 St. Rep. 534. It is manifest that the present is a strong case for setting aside the verdict. The contradiction of the plaintiff was not by the other party interested, but by a disinterested witness, and by the letter of the plaintiff himself. It is impossible to say that this verdict is supported by a fair preponderance of the evidence. The contrary is plainly the case, and the motion for a new trial should have been granted on that ground, if no other.

Judgment and order appealed from reversed, and a new trial granted, with costs to abide the event.

Lewis, J., concurs. Haight, J., dissents.


text:
    Hiram Truesdall, Resp’t, v. Charles H. Chumar, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January 18, 1894.)

    Evidence—Res gesta:.
    In an action for wages of a laborer for a corporation against a stockholder, the president’s statement, after the work was performed, is not admissible as part of the res gestee.

    Motion for a new trial on exceptions ordered to be heard at general term in the first instance.

      J. L. Woodworth and I. Sam Johnson, for pl’ff ; Charles N. Morgan, for def’t.
   Bradley, J.

— The complaint alleges the elements of two grounds of liability of the defendant,—the one, the non-payment in full of the amount of the capital stock of the corporation, as required by the statute (Laws 1848, c. 40, § 10), and the other that the money was due to the plaintiff’s assignor for his services as laborer for the corporation (Id. § 18). The defendant, by his answer, put in issue both alleged propositions, and the plaintiff proceeded at the trial with the view to recovery upon the latter ground. The defendant was a stockholder of the company to an amount exceeding that of the paintiff’s alleged claim. The plaintiff was the assignee of a judgment which had been recovered by Andrew Johnson against the company, and execution thereon had been returned wholly unsatisfied. The question, therefore, was whether or not the company was indebted to Johnson for services rendered by him as a laborer, within the meaning of the statute; and such is the claim upon which the judgment was recovered by him. And upon that subject a witness on the part of the plaintiff testified that he knew Johnson ; that, about the time the action was commenced by Johnson against the salt company he saw Daniel Eldridge and Johnson together; that Eldridge was then acting as president of the company; and that he heard a conversation between them in reference to the claim. He was then asked to state what it was. Objection was made to it as “ incompetent to prove any issue or any fact raised by the pleadings.” “ By the court: You seek to show that Mr. Eldridge, acting as president, admitted to Mr. Johnson that he had employed him, and that the claim was owing to him by reason of that employment ? By plaintiff’s counsel: Yes, sir; and that they looked over and made an accounting, and stated the amount between employer and employe. Now, it is to show that amount and to show the natureof the employment that I offer this evidence. We propose to show what the contract was." The objection was overruled, and exception taken. The witness testified that Johnson was in the witness’ office, and, when Eldridge came in, said to him : “You owe me $230, and agreed to pay me $4 a day. I have worked there seventy days, and you have paid meonly $50, and there is $230 due.” That Eldridge replied : “ I know I agreed to pay you $4 a day, and I only paid you $50; and, if you had done as you agreed, it would have been that amount.” This interview was some time after Johnson had ceased to work for the company, nor did the evidence given tend to make it so. The exception was well taken. Thalheimer v. Brinkerhoff, 4 Wend. 394; Cortland Co. v. Herkimer Co., 44 N. Y. 22; Anderson v. R. W. & O. Railroad Co., 54 N. Y. 334. The objection to the conversation remained, and, after the ruling, no inquiry was made whether they were engaged in any act of accounting, or by the way of adjustment or settlement; but the question was repeated, what was the conversation ? and the answer to it closed the examination of the witness on the part of the plaintiff. In Hoag v. Lamont, 16 Abb. N. S. 91; 60 N. Y. 96, the declarations proved, of the officer of the corporation, had relation to the contract out of which the liability in question there arose, were made at the time it was entered into, and constituted part of the transaction of making it. The judgment recovered by Johnson against the salt company was of itself no evidence, as against the defendant, of the alleged indebtedness of the company to him. Miller v. White, 50 N. Y. 137. For the error before mentioned in the reception of evidence, the motion for a new trial should be granted; costs to abide the event

All concur.


author: O’Brien, J.

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    Henrietta L. Roemer, App’lt, v. James A. Striker, Resp’t.

      (Court of Appeals,

      Filed April 10, 1894.)

    Pleadings—General denial.
    Under a general denial, the defendant can controvert any material fact which the plaintiff is hound to prove in the first instance, in order to make out his case.
    Appeal from judgment of the general term of the superior court of the city of Hew York, entered upon an order made January 18, 1898, which affirmed a judgment in favor of defendant entered upon an order dismissing the complaint on trial at circuit. The nature of the action and the facts, so far as material, are stated in the opinion.

      Ira D. Warren, for app’lt; W. F. Dunning, for resp’t.
   O’Brien, J.

The plaintiff sought to recover damages which it was alleged she sustained in consequence of injuries to her house from blasting by the defendant while excavating upon his own land for the foundations of seven houses he was engaged in building. The complaint alleged that the plaintiff owned the house which was injured, and that the defendant, in preparing to build on his lots, and in excavating the cellars, blasted the rock adjoining plaintiff’s premises in so careless, negligent and reckless a manner that the walls of plaintiff’s house were cracked, the plaster shaken off, the air shaft crushed and the foundations of the building injured. The answer was a general denial except as to the allegation that the defendant owned the adjoining lots, which was admitted. On the trial the defendants introduced in evidence a written contract between himself and a contractor whereby the latter agreed for a compensation stated to excavate the cellars for the houses within the time stated.

The plaintiff’s counsel objected to the admission of this contract in evidence on the ground that no such defense had been affirmatively pleaded. The court overruled the objection and the plaintiff excepted. We think that there was no error in this ruling. The action was not for a trespass or for creating a nuisance by an improper or unlawful use by the defendant of his own land whereby the property of his neighbor was injured, Booth v. R., W. & O. T. R Co., 140 N. Y. 267; 55 St. Rep. 656, but for careless and negligent blasting. It was incumbent upon the plaintiff to show that this was the defendant’s act, and she probably gave proof in the first instance from which the fact might be inferred. But the defendant had denied that it was his act, and he was entitled to show by proof that it was not, but in fact the act of another. He could controvert any material fact which the plaintiff was bound to prove in the first instance in order to make out her case. Milbank v. Jones, 141 N. Y. 340; 57 St. Rep. 429. The proof tended to show that the blasting complained of was the act of an independent contractor for whose negligence the defendant was not responsible. Devlin v. Smith, 89 N. Y. 470; Butler v. Townsend, 126 id. 105; 36 St. Rep. 508.

This defense was admissible under the general issue, as it tended directly to the overthrow of the plaintiff’s case. Some proof came out incidentally at the trial of a promise on the part of the defendant to make good the damage to the plaintiff. Entirely apart from the question whether the promise was one to answer for the debt, default or miscarriage of another, it is quite sufficient to say that the action was not brought upon any such undertaking, but on the case for negligence, and even if the proof of the agreement to pay the damages was more definite than it is, it could not be made the basis of a recovery. The judgment dismissing the complaint is right and must be'affirmed.

All concur.

Judgment affirmed.


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    The Second Methodist Episcopal Church in Greenwich, Resp’t, v. Sarah Humphrey, App’lt.

      (Court of Appeals,

      Filed April 10, 1894.)

    Deed—Reservation.
    No one, claiming under a deed, which reserves a lot from its operation and recognizes the title of another thereto, where such lot is practically located and identified, can dispute such title. ,
    Appeal from judgment of the general term of the supreme court in the third judicial department, entered upon -an order made November 22, 1892, which affirmed a judgment in favor of plaintiff entered upon the report of a referee. This was an action of ejectment. The premises in question were claimed to have been purchased by plaintiff from one Osmer Dixon, who died in 1849. Defendant claims under a deed from Phineas Dixon, the only heir at law of said Osmer Dixon, to one Aaron M. Hyatt. The further facts, so far as material, are stated in the opinion.

      JR. A. Parmenter, for app’lt; G. G. Van Kirk, for resp’t.

       Affirming 49 St. Rep. 467.

   Per Curiam.

deed from Phineas Dixon to Hyatt reserves from the grant the lot sold to the plaintiff. It is through this deed that defendant claims title. Her mediate grantor, Phineas Dixon, thus not only reserves the plaintiff’s lot from the conveyance to Hyatt, but he recognizes the title of the plaintiff and admits its existence. The evidence in the case plainly locates the lot thus sold. At the very time of the conveyance to Hyatt, there was a fence around the lot of the plaintiff, as now claimed by it, and the fence had been built at that time for at least ten years. The lot sold the plaintiff is thus identified and located practically. No one claiming through the Hyatt deed can dispute the title of the plaintiff to the lot which had been sold to it. We see no error in the record and the judgment should be affirmed, with costs.

Judgment affirmed.

All concur.


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    Mary S. Martin et al., as Executrices, etc., Resp’ts, v. George Hillen, App’lt.

      (Court of Appeals,

      Filed April 10, 1894.)

    1. Evidence—Reciprocal wills.
    In an action by the executors of the deceased wife against the husband for the conversion of bonds alleged to belong to her estate, reciprocal wills, previously revoked, and not referring to said bonds, are properly excluded.
    8. Witness—Section 829.
    The exception in § 829 of the Code is confined strictly to the transaction testified to by the personal representative.
    Appeal from judgment of the general term of the supreme court in the second judicial department entered upon an order made December 12th, 1892, which affirmed a judgment in favor of plaintiff entered upon a verdict and also affirmed an order-denying a motion for a new trial. This action was brought by plaintiffs, as executrices of Anna Hillen, deceased, to recover damages for the alleged conversion of certain railroad bonds. The facts, so far as material, are stated in the opinion.

      Charles J. Patterson, for app’lt; James Troy, for resp’ts.

      Affirming 50 St. Rep., 505.

   O’Brien, J.

The plaintiffs are the children by a prior marriage, and the personal representatives of the defendant’s deceased wife, who died in the year 1890, leaving a will. They have recovered judgment against the defendant for the conversion of seven .railroad bonds of the value of $8,050, which it was alleged belonged to their testatrix at the time of her death. The only question litigated at the trial was, whether the bonds in fact were owned by the deceased at the time of her death, or by the defendant, her husband: On this question the evidence was almost entirely circumstantial. It tended to prove that for some twelve years before her death the deceased owned several bonds of this character which she sometimes carried upon her person, and when at home she kept in a bureau drawer, and sometimes in a box or bag in her trunk, and that her daughters, the plaintiffs, were in the habit of collecting for her the coupons detached from the bonds as they matured, up to the time of her death. She kept accounts in savings banks in her own name, which it was claimed represented, in part at least, the interest received by her from time to time upon these securities. During her last illness she kept the key of the trunk containing the bonds under her pillow. Immediately after her decease the defendant’s niece, by his direction, procured the key and delivered it to him. He then opened the trunk and procured the bonds, refusing to deliver them to the plaintiffs. There was also some proof given of admissions by the defendant tending to show that he recognized the ownership in his wife of the bonds. On the other hand the defendant gave proof tending to show that he purchased the bonds about ten years before, and that the possession and use of the bonds by the deceased was for him and under his permission. In this state of the proof the learned trial judge submitted the question to the jury, and a verdict for the plaintiffs was found, which, we think has settled the disputed fact. The finding is based upon circumstances and facts that were faii'ly open to different inferences, and hence the question was one for the jury. Since it cannot be said that-the verdict is without any evidence to sustain it, we are concluded by the finding of the jury that the deceased was the owner of the bonds at the at the time of her death.

There were some exceptions taken in behalf of the defendant during the progress of the trial that are now urged as ground for reversal. The defendant's counsel produced reciprocal wills made by the husband and the wife in which each disposed of all property in favor of the other, bearing date July 28, 1885, and offered them in evidence, but they were excluded by the court, upon the plaintiffs’ objection, to which the defendant excepted. It was not claimed that either will existed or was in force at the time of the wife’s death, and it" in fact appeared that the one made by the wife was revoked by the subsequent will under which the plaintiffs claimed title. The contention of the learned counsel for- the defendant is that these wills tended to prove such harmonious relations between the husband and wife and such a degree of affection and confidence existing between them, with respect to the property of each, as to explain the character of the wife’s possession of the bonds and to weaken the plaintiffs’ position that she had them as owner in her own right and not as the agent or custodian of the husband. We think that the conclusion sought to be drawn from the fact of the execution of the instruments is so remoté and uncertain that it cannot be deemed a legal or logical result of the facts sought to be proved. There was not a word in the will of either that was'in the slightest degree inconsistent with the claim that the wife owned the bonds at the time of her death. The instruments in themselves proved nothing as to who owned the bonds, and they did not in any degree tend to explain or contradict any fact or circumstance upon which the plaintiffs’ case depended. If they tended to prove any material fact whatever it was that the wife, at the time she made the will, owned some property, at least, which she disposed of in favor of her husband, and it would be difficult to gather from the record what that property was unless she then had the bonds in question, but in this view it was a circumstance against rather than in support of the defendant’s claim. I am not aware of any principle or rule of evidence that permitted the defendant to sustain his case by proof of this character. The instruments would furnish a basis for arguments on both sides which might enable them to draw remote and uncertain inferences, not the natural or legal result flowing from the existence of the fact itself, and could have no other result than to confuse and mislead the jury, and, therefore, it was not error to exclude the proof.

One of the plaintiffs testified in her own behalf to a personal transaction with the deceased at a certain time and place, in the course of which, as she swore, she saw the bonds in her possession, and further, that she had collected the interest on the securities for her mother during several years,

The defendant, when testifying in his own behalf, was asked certain questions involving personal transactions with the deceased, tending to show that the bonds belonged to him, and that his wife had the custody and use of them by his consent That part of the question involving personal transactions was objected to by the plaintiffs as incompetent under § 829 of the Code, and the defendant excepted. These exceptions all involve the same principle, and may be considered as one. Section 829 recognizes the right of a party, suing as executor or administrator, to testify in his own behalf to a personal transaction or communication between the witness and the deceased, if it is otherwise competent In that case the adverse party may also testify against the executor or administrator, but the testimony, if it involves a personal transaction or communication with the deceased, must be confined strictly to the same transaction or communication to which the executor or administrator has already testified in his own behalf. It was competent for the defendant, if he could, to testify in regard to the same transaction referred to by the plaintiff in her testimony. McLaughlin v. Webster, 141 N. Y., 76; 56 St. Rep., 541. Confining himself to that transaction he could testify to any fact or circumstance that was a part of or involved in it that tended to contradict or weaken the plaintiffs’ version of it. But he could not explain, impair or contradict the plaintiffs’ version by means of another and independent personal transaction or communication between himself and the deceased. The contention of the defendant’s counsel is that the defendant could testify to any fact or circumstances that concerned the transaction testified to by the plaintiff, and any new or independent personal transaction, between the defendant and the deceased, that tended to contradict it, or show that it could not have occurred, was evidence o£ that character and admissible. We think that such a construction of § 829 is not permissible. The words “concerning the same transaction or communication” were inserted in the section for the very purpose of rendering such a construction impossible. It would open the door for the admission of all the evils which the section was intended to prevent and would go far towards repealing it entirely, since the testimony of the executor or administrator bringing the action, in his own behalf, to a single distinct personal transaction or communication, would open the way for the adverse party to testify to any other personal transaction or communication, or to any number of them, upon the ground that they tended to explain or contradict the single transaction or communication given in evidence by the plaintiffs. This would practically defeat the purpose which the legislature had in view. The defendant was asked by his counsel when on the stand, whether his wife, during the time when she had the bonds, was not handling money for him. This question was objected to by the plaintiffs, the objection stating no ground, and it was sustained and the defendant excepted. Notwithstanding the objection the witness stated that he had sent money upstairs by the clerk from the store, it appearing that the parties lived over the store. He said it was sent up every day until the deceased broke her leg, which was a few months before her death. In this view the ruling did not injure the defendant, but if the question was intended to draw out some other fact it was expressed in such vague language that it is impossible to say that the ruling was legal error. If the defendant had said that during all this time the deceased was handling money for him, that fact could have no legal bearing upon the question at issue, which was the ownership of the bonds. Handling money, unless it meant just what the'defendant testified to, expressed such a vague and uncertain idea and was so far foreign to the point in controversy that the trial court might well have excluded proof of the fact whatever it was. At least the proof could not furnish a basis for any legitimate inference as to who owned the bonds in question. The judgment must, therefore, be affirmed, with costs.

All concur.

Judgment affirmed.