text:
    Albert McGuire, Resp’t, v. The Ogdensburgh & Lake Champlain R. R. Co., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed March 15, 1892.)

    1. Railboad—Fence—Constbuctive notice of defect.
    Where a fence has been out of repair for a considerable period, a railroad company will be presumed to have had notice through its agent of said defective condition, and is chargeable with constructive notice.
    2. Same—Evidence.
    In an action against a railroad company to recover the, value of a horse-killed by a train on the track of defendant, through the latter’s negligence in allowing its fence to become defective, the court allowed evidence of the condition of the fence at the spot where a witness testified he found the horse’s tracks, and also in the immediate vicinity of the place. Meld, competent on the question of constructive notice to the defendant.
    3. Same—Refusal to chabge.
    In such case the court did not err in refusing to charge that “ if defendant’s employee made an examination of the fence the day before the accident and discovered no defect, the defendant is not liable,” and, also, "that “if the employee made such an examination as he in his judgment deemed proper under the circumstances the defendant is not liable.”
    Appeal from judgment in favor of plaintiff entered on verdict, and from order denying motion for a new trial.

      Lorn's JIasbroucIc, for app’lt; Thomas Spratt, for resp’t.
   Putnam, J.

This action is brought to recover the value of a horse which, escaped on to defendant’s railroad track through a defective railroad fence, and was killed by an engine.

I think there was sufficient evidence to submit the question to-the jury whether or not the horse in question escaped through the south fence to the railroad track. Joseph Gaseo, Jr., who-was first upon the ground and whose statement the jury could and probably did believe, found the south fence broken down. The top board was lying on the ground and the third board was nailed at one end, the other resting on the ground. Several horses-not killed were upon the track and these fie drove through the broken fence and nailed it up with a stone. He then discovered, tracks leading from the pasture to this opening and apparently through it. There was other evidence in the case tending to corroborate him. It is true that on the part of the defendant testimony was offered tending to show that the horse escaped through the fence at the sand pit, and from thence to the branch track. But the testimony given in this regard was conflicting and of such a character that the question as to what point the horses escaped from the pasture was properly submitted to the jury and the finding of the jury cannot properly be disturbed. Payne v. Troy & Boston R. R. Co., 83 N. Y., 574.

The plaintiff’s witnesses also gave evidence tending to show that part of the fence where the tracks indicated the horses went through on to the railroad track was in bad condition; the boards and posts rotten, shaky and weak; some of the boards not long-enough to reach the posts and some too rotten to be nailed; some of the boards were hanging loose and flapping. In addition to this testimony, Joseph Gaseo, Jr., shows that immediately after the accident he found the two boards off as before stated. This evidence justified a finding by the jury that'the fence was in bad condition some time before the accident.

It is true as claimed by appellant that the plaintiff to establish a case of negligence on the part of the defendant must show notice, actual or constructive, to it of the condition of the fence. But where a fence has been out of repair for a considerable period a railroad company will be presumed to have had notice through its agent of such defective condition ; will be chargeable with constructive notice. Hodge v. N. Y. C. & H. R. R. R. Co., 27 Hun, 395; Hungerford v. S., B. & N. Y. R. R. Co., 46 id., 340; 12 St., Rep., 204.

In this case if the jury believed the evidence given by plaintiff’s witnesses, they could find that this fence was an old, rotten, weak and insufficient fence, and one that should have been repaired,, and that defendant could properly be held chargeable with constructive notice of its condition. The distinction between this-case and that of Wheeler v. Erie R. R. Co., 2 T. & C., 636, cited by the defendant, is plain. In that case, as stated in the opinion of the court, there was absolutely no evidence showing the bad condition of the fence, even up to the day or the hour before the accident. In Murray v. N. Y. C. R. R. Co., 4 Keyes, 278, the-gate was only out of repair four days and under such circumstances that the attention of the defendant was not called to it. In this case, if plaintiff’s evidence is true as to the fence, it must have been out of repair for a considerable period. It was old and rotten, the boards flapping and short It must necessarily have-been in that condition for such a period as to charge defendant with constructive notice. This bad condition -was shown on the very spot where Gaseo found the fencé broken down. It is true that defendant’s employees testified that they from time to time examined the fence in question and had found no defect in- it. But the jury, under the circumstances, were not bound to believe the defendant’s witnesses in this regard. They could, and doubtless did, rely upon the testimony given by the witnesses produced by the plaintiff.

The court allowed evidence of the condition of the fence at the very spot where Gaseo found the tracks indicating that the horses had gone through and also in the immediate vicinity of the place. The appellant insists that it was error to allow such evidence except at the very place where the horse escaped. It is difficult to see how the admission of the evidence, as objected to and received by the court below, could have injured defendant But I think such evidence was properly received on the question of constructive notice to the defendant. It was a question of fact, under all the evidence and circumstances, whether defendant was negligent; whether defendant’s employees should have discovered the condition of the fence.

__ It was therefore proper to show the condition of such fence for a sufficient space, including where the horse went through, and on each side of that spot, so that the attention of the servants of the defendant should have been attracted. Suppose the defective spot in the fence had been only for the small space where the horse came through, the jury might have concluded that the servants of the defendant were not negligent in not observing so insignificant a defect in the fence. If, however, the defective spot was for several lengths of the fence, including the place where the horse came through, that was a defect that should have attracted notice. I think on the question of fact submitted to the jury, as to -whether defendant was or was not negligent in not dis•eovering the defective fence, the evidence so received was competent

The cases cited by defendant are not similar. In Reed v. N. Y. C. R. R. Co., 45 N. Y., 574, the court held that the condition of the railroad a half mile from the place of accident could not be shown. That is a very different case from this, where the condition of the fence was only shown in the immediate vicinity of the place where the horse -escaped. The other authorities cited by the defendant, Abbott’s Trial Evidence, 585, § 9; Calligan v. N. Y. C. & H. R. R. R. Co., 59 N. Y., 651, are not applicable.

I do not think the court erred in refusing to charge as requested by the defendant that if defendant’s employee Connor made an examination of the fence the day before the accident and discovered no defect and no boards down at the place where the horse escaped, the defendant is not liable. That if Connor made such •examination as in his judgment seemed proper under the circumstances, the defendant is not liable. The jury were not bound to believe Connor. They had a right to believe the testimony of the other witnesses, and from such testimony to infer that the fence in question was an old, rotten, weak and defective one, and if they so found they could determine from Connor’s examination of the fence the day prior to the accident that the defendant had express notice of its defective condition. If it was in fact, as witnesses testified, a poor fence, and the jury so determined, although Connor so examined it the day before the accident, his defective judgment in calling or considering it a good fence would not conclude the jury or shield the defendant from liability.

The judgment should be affirmed, with costs.

Herrick, J., concurs; Mayham, P. J., not sitting.


source: Caselaw Access Project

author: Herrick, J.

license: Public Domain

text:
    Esther A. Merritt, App’lt, v. Martin Merritt, Resp't.

      (Supreme Court, General Term, Third Department,

      Filed March 15, 1892.)

    Borro—Evidence. _
    _ Plaintiff entered into an ante-nuptial contract with defendants father bv the terms of which plaintiff, in case of their mter-marnageagiecdto release all her dower right in his property, and m consideiation ^'«efor was to receive her support during life, m case she survived him, the sa e to be a charge and lien upon his property. They married and b ed - gather until his death. Some years prior thereto, with the1 consent of plaintiff, he conveyed to his children, including defendant,_ all Ins piopertv, and they, in consideration therefor, executed and delivered to him their several' bonds, bv which they agreed to contribute their pro t ata share towards plaintiff’s sunport. in case of his death. On the trial of an action brought against defendant for his pro rata share, plaintiff put in evidence the ante-nuptial agreement, the deed to and bond from defendant,, and offered the deeds to and bonds from the other children, which were-excluded and the complaint dismissed, on the ground that the action was, virtually to enforce the agreement, and pertained entirely to a court of equity. Held, error; that it was an action to enforce the bond, and the other bonds and deeds were competent as fixing defendant’s pro rata contribution.
    Appeal from judgment of the county court of Sullivan, county, dismissing the complaint.

      George H. Smith, for app’lt; T. F. Bush, for resp’t.
   Herrick, J.

This action was brought in the county court' upon the following state of facts: On the 8tli day of May, 1869, the plaintiff, whose maiden name was Esther A. Grillett, entered into an ante-nuptial contract with Martin F. Merritt, the defendant’s father, by which, in case of their inter-marriage, the plaintiff agreed to release all her claim to dower or third interest in the property of said Martin F. Merritt, both real and personal, and in consideration thereof the plaintiff was to receive her support during life in case she survived him, such support, to be a charge and lien upon his property, and the said Merritt-made it, by said agreement, “ incumbent upon his said heirs so-long as she and they or either of them can satisfactorily agree,, that they shall make such provision for her, the said second party, and in case they fail to provide for said second party’s maintenance as comfortably as when she was the wife of said first party that in that case the said second party is-to make provision for herself, and the expense thereof to be a. charge upon any and all of my real estate or property that I now own or may hereafter acquire, notwithstanding any contract, deed, or will that I may hereafter make or suffer to be made,” and he. further agreed that such agreement should be a lien upon any and all of his estate, both real and personal. That such agreement was-delivered to the plaintiff May 8, 1869, and recorded in the Sullivan county clerk’s office, September 8, 1874.

That on the same day the plaintiff executed and delivered to-the said Martin F. Merritt, in consideration of said ante-nuptial agreement and of his marrying her, a release of all claims to dower or third in any and all property the said Merritt might die seized of, both real and personal; which release was recorded in the Sullivan county clerk’s office.

Shortly after the execution of said agreement and release the plaintiff married the said Martin F. Merritt, and they thereafter lived together as husband and wife until his death January 14, 1890. The complaint alleges that at the time of such agreement and marriage Martin F. Merritt was the owner and in the possession of a large amount of property, both real and personal.

That in the month of April, 1883, the said Martin F. Merritt transférred to four of his sons, including the defendant, various pieces of property, and in November and December of the same year he transferred to three other children various other property, and thereby his said children became the owners and possessed of all the property of said Martin F. Merritt; that at the time of such transfers, and as a part consideration therefor, the children of Martin F. Merritt executed and delivered to him. their several bonds conditioned that in case the plaintiff should survive the said Martin F. Merritt, they would each contribute his and her pro rata share towards the plaintiff’s support as long as she should live. Upon the trial the ante-nuptial agreement and release were put in evidence. Also a deed of real property from Martin F. Merritt and the plaintiff, his wife, to the defendant, dated April 7, 1883. Also a deed from the same parties to the defendant and two other children of Martin F. Merritt, of other real property, dated April 25, 1883.

Plaintiff also put in evidence a bond executed by the defendant to Martin F. Merritt, dated April 25, 1883, which recites that Martin F. Merritt has conveyed to Martin Merritt certain real ■estate on condition that Martin Merritt shall contribute to the support of Martin F. Merritt during his life, and shall also contribute to the carrying out of the ante-nuptial contract between plaintiff and Martin F. Merritt; it recites the amount that shall be paid to Martin F. Merritt during his lifetime, $62.50 annually, and after his death to contribute his due share according to the property he has then received to carry out said ante-nuptial contract.

The plaintiff offered in evidence similar bonds executed by the other children of Martin F. Merritt, who, it was claimed in the complaint, had received conveyances of his property. The plaintiff also offered in evidence deeds from Martin F. Merritt and the plaintiff, his wife, to the said several children of Martin F. Merritt. Upon the objection of the defendant the court refused to .admit either the bonds or deeds in evidence.

Other evidence was offered by the plaintiff that was not received by the court, but as to which there is no occasion to advert now, ■it apparently being rejected for the same reason that the court refused to receive the bonds and deeds.

In rejecting the evidence the court said : “ This action is virtually to obtain an enforcement of the ante-nuptial agreement. It is no doubt proper and right' that this defendant, with the other heirs and next of kin, should carry out that ante-nuptial agreement so far as it binds them; but if they refuse to do it, the remedy is for an enforcement of that agreement, and pertains entirely to a court of equity.”

At the close of the evidence of the plaintiff the court directed the dismissal of the complaint.

I do not think the action is one in equity; it is an action to enforce the condition of the bond. Under the ante-nuptial agreement the plaintiff was given a lien upon Martin F. Merritt’s prop•erty to enforce it. By uniting with her husband in the deeds to his children she released all lien she had upon the property described in those deeds, and the several bonds taken by the husband, so far as she was concerned, were substituted for the lien given by the ante-nuptial agreement. The agreement to support the father and to carry out the terms of the ante-nuptial agreement were the consideration for the conveyances to the children. The plaintiff in turn contributed her share of the consideration moving the children to execute their several bonds, by her signature to the deeds. And she had a right of action to enforce those -conditions in the bonds that were intended for her benefit. Arnold v. Nichols, 64 N. Y., 117; Todd v. Weber, 95 id., 181; Rector, etc., St. Mark's Church v. Teed, 120 id., 583; 31 St. Rep., 908.

The amount the defendant was to contribute was to be determined according to the property he had received from his father; the other bonds offered in evidence and rejected were stated to be for the same purpose as the one given by the defendant. In other words, .each one who received a share of the father’s property was to contributes to the plaintiff’s support in an amount proportioned to the share of the estate he or she received.

Hence, in determining the proportion that was due on the defendant’s bond, it became competent and material to show a like •agreement on the part of the other children and the amount of the property each one had received, and the bonds and deeds so •executed were, I think, admissible in evidence for the purpose indicated. The reception of evidence to determine the defend-ant’s “ due share according to the property he has received” does not constitute an accounting which changes the action to a pro•ceeding or action in equity.

I "think the trial court erred in holding that the action was one in equity of which the county court had no jurisdiction, and that it also erred in rejecting the bonds and deeds offered in evidence by the plaintiff, and that for such errors the judgment should be ■reversed and a new trial granted, with costs to abide the event.

Putnam, J;, concurs; Mayham, P. J., not sitting.


author: Putnam, J.

text:
    Charles C. Follmer, Resp’t, v. William M. Frommel, Impl’d, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed March 15, 1892.)

    1. Partnership—Authority op partner to make note—Evidence.
    The presumption that a note made in a firm name is made on account of the firm’s business may be controverted under a general denial.
    3. Same-Estoppel.
    A defendant is not estopped from claiming (hat the referee erred in excluding evidence offered under a general denial, because on the trial he obtained an adjournment in order to procure from the special term an -order to amend his answer and set up such facts as a separate defense, and having procured the order, appeared before the referee and proceeded to trial under his general denial.
    Appeal from judgment in favor of plaintiff, entered upon the nreport of a referee.

      J. H. Bain, for app'lt; Charles R. Patterson, for resp’t
   Putnam, J.

This action is brought against defendants as co-partners on a note purporting to be made by the firm, the defendant Frommel only defending.

The plaintiff alleges the copartnership of the defendants and ■that they on or about September 29, 1890, duly made, executed and delivered to the plaintiff the note in suit. The defendant. Trommel, in his answer, interposed a general denial. On the trial' it was shown that the note, which was executed by the defendant McKinstry, was given for lumber sold September 29, 1890. The-partnership was formed on October 1, 1890. The defendant then offered to show that said note was so given by McKinstry in the-name of the firm for a past due indebtedness from McKinstry to plaintiff. This evidence was objected to on the ground that it was inadmissible under the general denial contained in the answer and excluded by the referee. If this proof had been received and made it would clearly have constituted a defense to the action. The law applicable to such cases, as stated in Parsons on Contracts,, is quoted with approval in Union National Bank v. Underhill, 102 N. Y., 340; 2 St. Rep., 48, as follows; “Whenever a party receives from any. partner in payment for a debt due from that partner only, whether the debt be created at the time or before existing, or by way of settlement of or security for a debt or indebtedness, an obligation of the firm in any form, the presumption of the law is that the partner gives this and the creditor receives it in fraud of the partnership and has consequently no demand upon them.” Hence had the defendant made the proof offered the presumption would have arisen that the note was given in fraud of the partnership and unless the plaintiff could have answered that presumption he must have failed in the action.

The question then arises whether the defendant was entitled to-offer such evidence under the general denial contained in his answer. The allegation in the complaint is that on September 29',. 1890, defendants as copartners made and delivered to plaintiff their note, etc. Defendant denies this allegation in the complaint. The plaintiff then was bound to show the execution and delivery of the note by the copartners. He shows this presumptively by showing the execution of the firm note by McKinstry, one of the partners. The note being made by a partner in the firm name is presumed in the first instance to have been made on account of the firm business. But this is only a presumption. The defendant may controvert such a presumption and I think can do so under a general denial.

The question before the referee was, was the note in suit executed by the firm ? To award judgment for the plaintiff the referee must find that it was. The plaintiff must show by competent testimony that the paper was executed by the partnership: How does he show it? By showing the execution by one copartner in the name of the firm, which raises the presumption that it was a firm paper. But the reason that one partner can bind the firm and make contracts in the name of the firm is that each partner is a general agent of the copartnership in the firm business. But as held in Farmers & Mechanics' Bank v. Butchers & Drovers' Bank, 16 N. Y., 125; The Union National Bank v. Underhill, 102 id., 340; 2 St. Rep., 48, while each partner is a general agent of the firm in partnership business and can bind the firm by making notes in such business, he has no more authority than a mere stranger to make such a note for his own accommodation or for ■others. Therefore, when the plaintiff rested on the presumption that the note executed by McKinstry in the name of the firm was a partnership note and binding on the firm, the defendant, Frommel, under a general denial, could show that McKinstry gave such note to pay his past due private debt in fraud of the firm, and that such note was void as to him. The evidence offered, if received and made, would have shown that McKinstry had no right to sign the firm name to the note in suit, and would have raised the presumption, being given for a private debt of McKinstry to -plaintiff, that the latter knew the note was given in fraud of the firm and without authority. Hence, the evidence offered was in direct contradiction of the evidence offered by the plaintiff that the note was a firm note.

If McKinstry had been Frommel’s agent, and without authority, had executed a contract or made a note in his name, defendant, being sued on such contract or note, under a general denial could have shown that he did not execute or make the contract in suit, and to establish such fact that the agent had no authority to make it in his name. See Hier v. Grant, 47 N. Y., 278.

Under a general denial a defendant must be allowed to controvert by evidence anything plaintiff is bound to show to establish his cause of action. Plaintiff alleges that defendants as co-part,nere made the note in suit. Defendant Frommel denies this. Plaintiff must prove that the firm made the note. Frommel can -show under his denial that the firm did not make it, because Mc-Kinstry, as agent of the firm, had no right to sign the firm name to the note given for his individual debt. See Benton v. Hatch, 43 Hun, 146; 6 St. Rep., 203; Griffin v. Long Island R. R. Co., 101 N. Y., 354; 1 St. Rep., 56; 20 Abb. N. C., 342, note; Williams v. Walbridge, 3 Wend., 415.

It is suggested that defendant having on the trial obtained an adjournment in order to procure from the special term an order to amend his answer setting up as a special defense that the note in suit was given by McKinstry in the firm name to pay his individual debt, and having obtained such order and not having availed himself of it, should be estopped from' claiming that the referee erred in excluding the evidence so offered under the general denial.

I am unable to see how an estoppel can exist in this case. The defendant on the trial made a mistake as to the legal effect of his .answer. But it is held that a party is never estopped by his admission or assertion of a legal conclusion. Brewster v. Striker, 2 Comstock, 19. But again, an estoppel in pais is where an act or ■omission of a party has influenced another to a line of conduct or to act in a way prejudicial to his interest if the party doing such act or making such admission is not prevented from retracting. The cases cited by plaintiff will illustrate this proposition. Tn this case the defendant proposed to amend his answer, and obtained the order of the special term allowing him to do so on terms. He did not avail himself of the order and afterwards appeared before the referee and on the trial claimed under the gen■eral denial to show the facts excluded as above by the referee. The plaintiff has not acted or been influenced or injured by the proposal of defendant to amend his answer. It does not appear that the plaintiff in consequence of defendant’s-procuring the adjournment and obtaining the order to amend has done any act. that he would not have done had such an adjournment not been had or said order not been obtained. Hence it is not a case of an estoppel.

> These facts render it unnecessary to consider the question, discussed by counsel, whether under the general denial the defendant could properly show a want of consideration for the-note in suit, and also the other questions discussed by the parties.

It is suggested by respondent that. the first offer of defendant’s, even if proper under a general denial, did not propose to prove facts sufficient to constitute a defense, and hence the objections thereto were properly sustained by the referee. As I have endeavored to show, under doctrines well settled by the courts, bad the evidence offered been given, it would have raised the presumption that the defendant McKinstry gave, and plaintiff received, the note in suit in fraud of the partnership, and hence as to the defendant that said note was void.

Hence I think the referee erred in sustaining the objections to the offer of defendant, and that the judgment should be reversed, the referee discharged, and a new trial granted, costs to abide the event.

Herrick, J., concurs; Mayham, P. J., not sitting.


text:
    Hugh Mea, Resp’t, v. Anna M. Pierce, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed March 15, 1892.)

    Pleading—Amendment—Code Civ. Pro., § 723.
    Section 723 of the Code does not give the court on the trial power to-allow a plaintiff, defeated on his original complaint, to substitute a new and different cause of action. The power given to the court by said section is to allow an amendment to the pleadings by inserting an allegation, material to the case.
    Appeal from order permitting an amendment of the complaint.

      A. B. Shepard (John 0. Keeler, of counsel), for app’lt; G. S. Borwin, for resp’t.
   Putnam, J.

The cause of action stated in the complaint-was the alleged negligence of defendant, by which plaintiff, without negligence on his part, was injured in July, 1887, and sustained damages to the amount of $5,000. The allegations in. the complaint that defendant’s husband and agent agreed to settle-the matter, which was the reason of delay in bringing the action, does not in any manner change its nature. The action was commenced in November, 1890, and defendant among other defenses pleaded the statute of limitations. On these plead ings the plaintiff" went to trial in October, 1891, and on the opening of the plaintiff and the pleadings the defendant moved the dismissal of the complaint, on the ground that it appeared that the cause of action stated therein was barred by the statute of limitations. The court, thereupon granted the motion. The plaintiff then made a motion to amend by inserting at the end thereof allegations that over a-year before the commencement of the action the claim was put into the hands of an attorney for collection; that defendant requested that no action should be commenced, agreeing that if a request was granted she would pay plaintiff $500 on account of his injuries on demand; that plaintiff assented and agreed to said promise settling said cause of action in consideration of said agreement and $500 to be so paid; that defendant neglected and refused to pay said $500.

The defendant objected to the amendment, but the court allowed the same, and the cause went over the term.

It was sought by the amendment to change the cause of action from tort to one of contract; a contract made by defendant to settle plaintiff’s cause of .action for $500.' The cause of action under the amended-pleadings was the promise made by defendant a year before the commencement of the action to pay plaintiff $500 on account of the injuries he had received two years before such promise.

There are two questions to be considered. Had the court power on the trial to allow the amendment in question ? If it had such power, was it furtherance of justice to exercise it ? There have been cases holding that the court may allow an amendment changing the cause of action from contract to tort. See Eighmie v. Taylor, 39 Hun, 366. If such an amendment can be made at any time by an order of the special term I see no reason why such an order cannot be granted by the court on the trial under § 723 of the Civil Code.

I think, however, that § 723, supra, should not be construed as giving the court on the trial power, a plaintiff on his original complaint being defeated, to allow him to substitute a new and different cause of action. The power given to the court by § 723, supra, is to allow an amendment to the pleadings by inserting an allegation material to the case; not a power to substitute a new cause of action. See Barnes v. Quigley, 59 N. Y., 265; National Steamship Co. v. Sheahan, 122 id., 462-466; 34 St. Rep., 35; Gaslight Co. v. Rome, W. & O. R. R., 51 Hun, 119; 24 St. Rep., 154; Fisher v. Rankin, 25 Abb. N. C., 191; 27 St. Rep., 582; Halsey v. Tradesman's Nat. Bank, 24 St. Rep., 953; Ransom v. Wetmore, 39 Barb., 104; Davis v. N. Y. L. E. & W. R. R. Co., 110 N. Y., 646; 17 St. Rep., 172.

Assuming, however, that the court below had the power to. allow the amendment in question, I think it -was a case where the court should not have exercised such power. It was pot in furtherance of justice to do so.

The plaintiff knowing that his action was commenced over three years after the accident which he claims was caused by the negligence of the defendant, and after the alleged settlement and promise by defendant to pay $500, elected to bring the action on the original cause of action and not upon the subsequent promise of defendant. The defendant answered it alleging that the claim on which the action was founded was barred by the statute of limitatians. The answer was served long before the trial. Plaintiff was therefore not talcen by surprise. Knowing that such an answer was interposed and knowing all the facts, he elected to come to trial and was defeated. Under the circumstances the defendant was entitled to a judgment dismissing the complaint. The plaintiff elected to come to trial on his pleading as it stood, and having been defeated, it was not, I think, in furtherance of justice to allow him to substituted new cause of action to save himself from such defeat.

It was a case where the complaint should have been dismissed. Had that course been taken the judgment on such dismissal would not have been a bar to a subsequent action on the contract of settlement, if the plaintiff had in fact any cause of action thereon. I should doubt, however, whether plaintiff had such cause of action. After such settlement he elected to bring his action on the original claim for defendant’s alleged negligence, which shows his understanding that such a claim was not settled by the agreement set up in his amended pleading. Also in such amended complaint the allegation is that the cause of action was settled, not by the agreement to pay $500, but by the agreement and $500 so to be paid. In other words, by the agreement and its performance. Therefore, it is quite doubtful whether the contract of the party as alleged in the amended complaint is an accord and satisfaction on which an action can be maintained. The original cause of action remained, as the plaintiff evidently understood it did. See Kromer v. Heim, 75 N. Y., 577.

However, it is not necessary in consequence of the views above stated to pass upon this point.

The order should be reversed, with ten dollars costs and printing disbursements to the defendant,and the motion to amend denied, with ten dollars costs.

Herrick, J., concurs; Mayham, P. J., not sitting.


text:
    Samuel T. Guilford, Resp’t, v. Joseph B. Mills, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed March 15, 1892.)

    Mortgage—Fraud—Execution.
    A mortgage given to defraud creditors gives neither title nor legal pas-' session as against execution creditors for a pre-existing debt, and as against such creditors the title and right to possession is still in the mortgagor, and the mortgage being void as to such creditors the property is regarded as that of the judgment debtor, and can be taken on execution the same as though no mortgage existed.
    Appeal from judgment in favor of plaintiff entered upon decision by the court at special term.

      H. L. Stearns and G. S. Enches (L. H. Northrwp and G. R. Patterson, of counsel), for appl’t; J. H. Bain (E. T. Braclcett, of counsel), for resp’t.
   Herrick, J.

On the 8th day of March, 1888, the plaintiff sold to William H. Crandall and Loren D. Boynton, copartnérs in business under the name of Crandall & Boynton, his stock in trade in the business theretofore conducted by him, for the sum of $2,764.67, which sum was paid and secured to be paid to the plaintiff as follows: $500 in cash, a note of Crandall & Boynton for $764.67, a bond and mortgage given by Crandall for the sum of $1,500 upon real estate owned by Crandall of the value of from $2,000 to $2,500.

And that thereupon the said firm of Crandall & Boynton took possession of said property and carried on business therewith in the store owned by the plaintiff and rented from him by said Crandall & Boynton and continued in such business until the month of March, 1889.

That on the 14th day of February, 1889, the said Crandall & Boynton executed and delivered to the plaintiff a chattel mortgage upon all their stock in trade, accounts, debts and demands, the consideration claimed therefor being the balance of the purchase price of the goods originally sold by the plaintiff to said Crandall & Boynton, and for rent and labor of the plaintiff. That after the execution and delivery of said chattel mortgage to the plaintiff Crandall & Boynton continued their business in the same manner and place as before, selling portions of the mortgaged property for cash and on credit, buying new goods and placing them with the others, making no distinction between the goods mortgaged and those thereafter ‘purchased, selling both as from a common stock, keeping no record of the sales, but keeping the proceeds thereof, all of which was done with the knowledge of the plaintiff and without any objection on his part, and he being one of the customers of said Crandall & Boynton, making purchases from them after the delivery of said -chattel mortgage. The said Crandall & Boynton also used some of the demands included in the chattel mortgage to pay some of their debts and in the purchase of goods to carry on their business.

That on the 6th day of March, 1889, the plaintiff found a key to the door of the store, locked the store and took the key away with him. On March 23d he advertised the merchandise included in said chattel mortgage for sale; on the 29th of the same month, at the office of an attorney, one and one-half miles distant from the store where the merchandise was, such merchandise was put up for sale under said chattel mortgage, only the plaintiff, his attorney, and one of the mortgagors being present, and the property was bid in by the plaintiff. On the 21st of March, 1889, William H. Crandall gave the plaintiff a chattel mortgage upon a quantity of personal property owned by him, as collateral security to the bond accompanying the mortgage upon real estate first mentioned, and given as part of the purchase price of the property sold by plaintiff to Crandall & Boynton.

That on the 11th day of April, 1889, Crandall & Boynton confessed judgment in favor of the plaintiff herein for $1,415.62, damages and costs, the consideration therefor, as stated in the confession, being a balance due of $1,400 on the purchase price of goods sold by the plaintiff, March 8, 1889, to said Crandall & Boynton.

That on the 11th day of April, 1889, the said Crandall & Boynton made a general assignment for the benefit of their creditors, and in said assignment the plaintiff was made a preferred creditor.

That defendant is sheriff of Warren county, the county wherein all the foregoing transactions occurred and where the property in question is located; that as such sheriff the defendant received executions on the 21st, 22nd, 25th and 30th days of March, and the 13th and 17th of April, upon judgments rendered against the firm of Crandall & Boynton, one of said executions dated April 13th. being in favor of the plaintiff against said Crandall &. Boynton.

That on the 20th day of April the defendant made an actual levy upon the goods described in the complaint by virtue of said executions,-and on or about April 27th the plaintiff replevined the goods so levied upon by the defendant and still has them in his possession, and that such goods are of the value of $650.

The trial court found that the plaintiff had no right or,claim to the possession of the goods described in the complaint except under the chattel mortgage of February 14, 1889, and also found that said mortgage was made with intent to hinder, delay and defraud the creditors of Crandall & Boynton, and that the same is fraudulent and void as to the creditors of Crandall & Boynton whose claims existed unsatisfied at that time. The court found in addition that the judgments upon which the first four executions were issued were recovered upon debts owing by Crandall & Boynton at and prior to the execution of the chattel mortgage of February 14, 1889, to the plaintiff, and these findings all seem abundantly sustained by the evidence in the case. From these facts we cannot see how the plaintiff is entitled to maintain his action. The defendant stands in the place of creditors; he is the instrument by which they are enforcing their rights; and to allow the plaintiff, whose only title is one procured for the purpose of defrauding, and is held to be fraudulent and void as against creditors, to take the property from the defendant, would be simply allowing him to use the process of the court to consummate the fraud.

A fraudulent mortgage given to defraud creditors gives neither title nor legal possession as against execution creditors for a preexisting debt, and as against such creditors the title and right to possession is still in the mortgagor, and the mortgage being void as to such creditors, the property is regarded as that of the judg-" ment debtor, and can be taken on execution the same as though no mortgage existed. Kitchen v. Lowery, 127 N. Y., 53-59; 37 St. Rep., 327.

As against the plaintiff the defendant was lawfully in possession of the goods in behalf of pre-existing creditors, and he was not divested of that possession or right to possession by the assignment for the benefit of creditors made April 11, 1889 ; first, because we think that that instrument was part of the plan or scheme to defraud creditors for the benefit of the plaintiff. There was no property of the assignors left for them to assign; the assignee .could find none; there was nothing for the assignee to take unless the previous mortgages and conveyances should be adjudged void' and the property pass to the assignee, and in that event the plaintiff was a preferred creditor under the assignment, and the amount of his claim, if valid, would apparently swallow up all the assets; second, because the assignment, if valid, "could not remove the previously acquired liens of the executions in defendant’s hands; those at least which were placed in his hands for execution prior to the alleged sale under the chattel mortgage.

An execution is a lien upon the personal property of the judgment debtor from the time of its delivery to the sheriff for execution. Ray v. Birdseye, 5 Denio, 619; Thompson v. Van Vechten, 5 Abb. Pr., 458; Stewart v. Beale, 7 Hun, 405; affirmed, 68 N. Y., 629. Code of Civil Procedure, § 1405. And the defendant has a right to enforce the liens thus acquired under the executions, and for that purpose to retain possession of the property.

Judgment should be reversed, and new trial granted, costs to abide the event.

Mayham, P. J., and Putnam, J., concur.


author: Per Curiam.

text:
    Theodore B. Van Derveer et al., Resp’ts, v. William H. Woodworth, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed March 15, 1892)

    Pleadings—Redundant and irrelevant allegations.
    In an action to recover possession of certain property levied upon by defendant, an officer of a city, and who, as such, had seized the same under a warrant for the collection of a special assessment for street grading, it is error to strike out from the answer, as redundant and irrelevant, allegations showing the regularity of the corporate proceedings preceding the warrant under which he, as a corporate officer, claimed to take and hold the property in suit.
    Appeal from order of special term, striking out certain portions of the answer.

      Louis Id. Reynolds, for app’lt; F. P. White, for resp’ts.
   Per Curiam.

We think those parts of the order of the special term striking out the third paragraph of defendant’s answer and awarding to plaintiff costs of the motion, should be reversed on the authority of Town of Essex v. The New York & Canada R. R. Co., 8 Hun, 361. See, also, Bradstreet v. Bradstreet Co., 14 St. Rep., 260, 261; Duprat v. Havemeyer, 18 W. Dig., 439; Williams v. Folsom, 57 Hun, 128; 32 St. Rep., 455.

It is held in the cases above cited that a party should have a reasonable latitude in stating his cause of action or defense. The part of the answer stricken out by the court below could probably have been stated more briefly; possibly, it might have been safely omitted. We think, however, it was proper for the defendant to allege the facts showing the regularity of the corporate proceedings preceding the warrant under which he, as a corporate officer, claimed to take and hold the property in suit, and that the allegation stricken out was pertinent and competent in that regard. Certainly, it is quite clear that the retention of the said third paragraph in the answer cannot in any possible way injure the plaintiff, and, therefore, under the rule as laid down in the case above cited by a previous general term of this district, it should remain in the pleadings.

Those parts of the order appealed from, striking out the third paragraph of the defendant’s answer (except the figure 3 at the commencement thereof), and allowing the plaintiff costs of the motion, should be reversed; the residue of the order to stand, with ten dollars costs of the appeal and printing disbursements to the appellant.

Herrick, J., concurs; Mayham, P. J., not sitting.


author: Herrick, J,

text:
    The People ex rel. John Clingan v. Andrew S. Draper, State Superintendent of Public Instruction.

      (Supreme Court, General Term, Third Department,

      Filed March 15, 1892.)

    Schools—Certiorari—Removal op school trustee by superintendent OP PUBLIC INSTRUCTION.
    The relator, as school trustee, was directed by the superintendent of public instruction to close up the affairs of bis school district, pursuant to chap. 54, Laws of 1891, and further ordered to show before him on a day certain what proceedings he had taken in fulfillment of the order, and that if it should then appear that he had not proceeded promptly and in good faith to obey the same, that he then show, cause why he be not removed from office. Pursuant to the order, the relator made his report, in which he admitted that he had violated the order and a previous one, and had neglected and refused to comply with the same. "Whereupon the superintendent removed him from office. On certiorari to review the action of the superintendent, Held, that the facts stated in the return are conclusive upon the court, and these facts being true fully justified the superintendent in removing relator from office.
    Certiorari to review action of the superintendent of public instruction in removing relator from "office as school trustee.

      D. M. De Witt, for relator; Linson & Van Burén, for resp’t.
   Herrick, J,

This is a certiorari to review the action of the defendant as state superintendent of public instruction in removing the relator from his office of trustee of school'district No. 1 of the town of New Paltz, Ulster county. The power of the superintendent of public instruction to remove school officers is under § 18 of title 1 of chapter 555, Laws of 1864, reading as follows: “ Whenever it shall be proven to his satisfaction that any school commissioner, or other school officer, has been guilty of any wilful violation or neglect of duty under this act, or any other act pertaining to the public schools, or of wilfully disobeying any decision, order or regulation of the superintendent, the superintendent may by an order under his hand and seal, which order shall be recorded in his office, remove such school commissioner or other school officer from his office.”

It appears that in 1887 or 1888, at an annual school meeting held in district No. 1 of the town of New Paltz, the qualified voters resolved that an arrangement should be made with the normal and training school in said town for the instruction of the pupils .in said school district; and that such an arrangement was entered into whereby the normal school took charge of instructing the pupils of said district upon an annual payment by the said ■ district of the sum of $800 ; that said agreement was continued from time to time and at the annual school meeting held August 5, 1890, it was resolved that said agreement be continued for the . ensuing year; the sum of $110 voted to be raised to be paid to the normal school, which together with the public school moneys allotted to said district would make the full sum of $800.

That the relator, John Olingan, was on the 6th day of August, 1890, elected trustee, and proceeded to hire two teachers for said district. He paid them the sum of $110, and levied and assessed a tax of $300 upon the district for the purpose of paying such teachers, and issued a warrant for the collection of such tax; then one of the residents and taxpayers of the district appealed to the superintendent of public instruction from the action of the relator in employing such teachers, in paying out the school moneys to them, and levying a tax upon the district to raise the additional amount. . That appeal was not decided until September 11, 1891, and it was then among other things decided that the relator had legal authority to employ such teachers, and that his action in so doing must be upheld, and that the district must pay the teachers so employed. In so far as it concerned the employment of teachers, that appeal was not sustained; in some other respects not necessary now to recount, it was, and among other things the relator was directed to cancel the old tax bill, restore all moneys collected under it, and issue a new one to raise the moneys necessary to pay the wages of the teachers so employed by the relator, the superintendent deciding that the school moneys remaining in the hands of the local board of managers of the state normal school was not applicable to pay such teachers.

In the mean time pending such appeal, and before its decision, and on the 10th day of March, 1891, chapter 54 of the Laws of 1891 was passed, which was intended to settle the difficulties in the school district. It provided for the admission of pupils from school district No. 1 free of charge to the practice department of the normal school; that the state school moneys allotted to said district No. 1 in the year 1891, and thereafter, should be paid over by the supervisor of New Paltz to the local board of managers of said normal school, and it further provided that “ The present district officers of school district No. 1, town of New Paltz, Ulster county, shall continue in their respective offices, and discharge their duties pertaining thereto until any and all present indebtedness of said district is liquidated, and thereafter no school district meeting shall be held, nor school district officers chosen, and all school moneys remaining to the credit of said district after the liquidation of such indebtedness shall be paid over to the local board of managers of the State Normal School located at New Paltz.” That on the 4th day of August, 1891, a meeting' of residents of said district No. 1 was held, at which the relator was elected a trustee and other persons were, or claimed to be, elected to the several school district offices; at such meeting resolutions levying a tax for. the sum of $250 for teachers for the then ensuing year, $50 for incidental expenses, the sum of $695 for teachers’ wages employed by the trustees during the preceding year, were passed. That after such meeting an appeal from the proceedings thereof was duly taken to the superintendent of public instruction, and such proceedings were had upon said appeal that on the 7th day of September, 1891, the superintendent made a decision wherein he sustained the appeal, and held the meeting of August 4, 1891, and all acts in pursuance thereof to be unlawful, void and of no effect; the order also directed the relator what to do as trustee of the school district, to close up its affairs pursuant to chapter 54 of the Laws of 1891; and further ordered that the relator show before him on the 29th day of September, 1891, what proceedings he had taken in fulfilment of the order, and that if it should then appear that he had not proceeded promptly, intelligently, and in good faith to obey the same, that he show cause at the same time and place why he should not be removed from the office of trustee.

Pursuant to said order the relator made a report to the defendant at the time and place named of his proceedings thereunder, whereupon such proceedings were had that the defendant did then and there remove the relator from his office of school trustee, and it is to review such order of removal that this proceeding is brought.

The return of the defendant is conclusive as to the facts therein set forth. People ex rel. Sims v. Fire Commissioners, 73 N. Y., 437.

That return set forth that the relator appeared in person and by counsel before the defendant on the return day of the order hereinbefore referred to, and by the return and by the statement of his counsel admitted that he had violated that and a previous order of the superintendent, and had neglected and refused to comply with the orders of the superintendent; and that he had advised teachers to commence suits against the district for their wages, instead of levying a tax to raise the money to pay them, as the superintendent had ordered him to do. As above stated, the facts stated in the return are conclusive upon the court here, and these facts being true abundantly justified the defendant in removing the relator from office.

The proceeding was perhaps summary, but the facts were admitted. There was no occasion for proof.

But it is claimed that there are facts stated in the affidavit upon which the writ was issued which are not denied in the return, and therefore the court may consider them under the case of the People ex rel. Peck v. Commissioners, etc., of Brooklyn, 106 N. Y., 64; 8 St. Rep., 634. The claim of the relator is, that the real reason the defendant removed the relator was that he refused to discontinue a proceeding he had brought to compel the local board of managers of the Normal school at New Paltz to pay over the public school moneys they had received to be paid to the teachers employed by the relator.

Even if that were so Í see no reason to reverse the order of the superintendent. He had made a decision of that question himself. It was in a matter over which he had jurisdiction. He also there and then made a decision in regard to the matter, and it was in a matter where the statute made his decision con- ■ elusive. The conduct of the trustee as to school matters was also .subject to his supervision and control. He then and there made an order, which he had a right to make, directing the relator to .abandon his proceedings against the local board of managers of the Formal school. The relator then and there refused to abandon -.the proceedings, and expressly announced, by his counsel present -with him, his intention of continuing such proceedings.

This I think constituted a wilful disobedience of an order or •decision of the superintendent within the meaning of the statute.

Wilful I think in this statute means intentional, Anderson v. Howe, 116 N. Y., 336; 26 St. Rep., 787, and the relator certainly intended to disobey the defendant’s order. It was not a case of neglect, omission or misapprehension, but of absolute refusal, and .an announcement of an intention of doing directly the reverse of what he was ordered to do.

The writ should be quashed, and the determination of the defendant affirmed, with fifty dollars costs and printing disbursements.

Putnam, J., concurs; Mayham, P. J., not sitting.


author: Bookstaver, J.

text:
    John Riggs, Pl’ff, v. Margaret Shannon et al., Def’ts.

      (New York Common Pleas, Special Term,

      Filed November, 1891.)

    1. Mechanics’ liens—Constitutional law—Jury.
    The provision of the general Mechanics’ Lien Act of 1885, chapter 343, assimilating the practice on foreclosure to that in actions to foreclose mort.gages on real estate, is not unconstitutional as to the city and county of New York because, at the time of the adoption of the constitution of 1846, a local statute was in force providing that issues raised in the foreclosure of mechanics’ liens upon property in said city should be tried in the same manner as issues joined in actions of assumpsit.
    '2. Same—Code Civ. Pro. § 970.
    The amendment to § 970 of the Code of Civil Procedure by chapter 308, Laws 1891, does not grant the right to trial by jury generally as to issues arising in actions to foreclose mechanics’ liens, but only as to any issues involving value of .property or damages. '
    :3. Same—Counterclaim.
    Where the defendant sets up a counterclaim for damages sustained through delay in the completion of the contract, the particular issue as to such damages, unless waived, must be tried by jury.
    4. Same.
    Where a plaintiff brings his action to foreclose his lien in a court of record, when lie could have brought it in a district court and have been entitled to demand a jury trial, he is not entitled to urge his poverty as a reason ’ for having the action tried by jury.
    Motion to send certain issues of fact to a jury for trial.

      William P. Prentice, for motion; Willard Packer Butler, opposed.
   Bookstaver, J.

The action is brought in the usual form, to foreclose a mechanics’ lien, and the contention is that in such .actions the plaintiff is entitled, as a matter of right, to try all questions of fact by a jury. Section 8 of chapter 342, Laws of 1885, governing mechanics’ liens, provides that “ the manner and form of instituting and prosecuting any such action to judgment. * * * shall be the same as in actions for the foreclosure of mortgages upon real property, except as herein otherwise provided.”" Actions to foreclose mortgages on real estate are invariably tried by the court without a jury, and the instances are rare where the-court has sent any issue of fact in such case to a jury for determination, and when this has been done, it has always been at the discretion of the court. But plaintiff contends that the constitution of 1846, article 1, § 2, declared that trial by jury should “ in all cases in which it has heretofore been used, remain inviolate foreverthat at the time the constitution was adopted,. trial by jury was in use in actions to foreclose mechanics’ liens; that the section of the act of 1885 before quoted takes away this-right, and is therefore unconstitutional and void. If this conclusion is sound, it goes too far. It would prevent the plaintiff from recovering any judgment in this action. He has filed his lien and brought his action under the provisions of this act, and if the-mode of enforcing his rights under it is unconstitutional, then no. way is provided for the adjudication of his claim. He cannot at the same time assert that a law is void and yet seek to enforce its-provisions.

But I do not think the law is unconstitutional. The act in force in 1846 was chapter 220 of the Laws of 1844. This was a purely local law and applied to the city of New York alone; it authorized the filing of liens where work had been done, or materials-furnished, upon houses or buildings and appurtenances in that city. It provided for the foreclosure of such liens by serving certain notices, and that on the appearance of the parties issue should be joined on the claims made, and notices of set-off served, and that the matter should be noticed for trial and put upon the calendar of the court by either party, and should be tried and judgment enforced in all respects in the same manner as upon issue joined and judgment rendered in actions of assumpsit. This statute regarded the proceeding as if it were an action at common law to recover a debt. But this law was repealed by chap. 500 of the Laws of 1863, and the validity of the last mentioned act has-never been questioned as far as I am aware. The act of 1863 was repealed by the law under consideration, so that if the act of 1885-is void there is no mechanics’ lien law which can be enforced in this-city. I do not think, however, that the people of the state of New Y orle, when they adopted the constitution of 1846 and the provision referring to jury trials, intended to declare that every or any local law in which the legislature had theretofore provided for a jury trial as a matter of convenience, and which affected a limited district in the state only, should never be modified or altered as to the mode of enforcing such laws by the legislature, and could only be changed by the adoption of a new constitution. The provision was intended to preserve to the people the right to* a trial by jury in every case where such trial had theretofore been used as a matter of right by the people of the whole state. To* hold otherwise might continue a local law in force long after its .usefulness had passed, and would in all cases retard the making of a uniform system of law for the whole people. The act of 1885 was intended to ando did make uniform the law regulating mechanics’ liens throughout the state, besides extending its operation and making it more effective. As it now stands, actions brought under it often present questions of the highest equity between the owner and the various lienors, and it is eminently proper that they.should be tried by the court without a jury.

But plaintiff further contends that even if the law be constitutional, yet as it has been distinctly held in Schillinger Fire Proof Cement & Asphalt Co. v. Arnott et al., 14 N. Y. Supp., 326, that .actions to foreclose mechanic’s liens are triable by a jury, I should follow that decision. That case -was heard on demurrer at special term, and involved a number of other questions, so that it is quite probable that the point under consideration in this case did not receive the learned justice’s full consideration in that. The decision of the question seems to have been based largely on ,-§§ 11 and 12 of the act of 1885, which expressly provide that the issues in such actions “ must be tried the same as other issues are tried in the respective courts in which the action is brought,” from which he concludes that they may be tried by a jury. Doubtless his attention was not called to the fact that § 8, conforming ithe procedure to that in actions for the foreclosure of mortgages •on real estate, applies to courts of record exclusively, while §§ 11 iind 12 are applicable to courts not of record only, and probably constitute the exception contemplated in § 8. In Kenney v. Apgar et al., 93 N. Y., 539, at 550, it was held that an action of this kind “ was an action in equity triable by the court without a jury, as to which neither party hada right to a jury trial, except as to such issues as might be framed and sent to a jury.” Of course the latter class of issues are always at the discretion of a court of equity. But that is a matter of discretion, and not of right, as claimed in this case. '

The case last cited seems to me conclusive on this question, unless the amendment to § 970 of the Code in 1891 gives the plaintiff a right he did not have before. That section, as amended, among other things, provides that where one or more questions arise on the pleadings as to the value of property, or as to the damages which a party may he entitled to recover, either party may apply, upon notice, at any time, to the court for an order directing all such issues or questions to be distinctly and plainly stated for trial accordingly. Upon the hearing of the application the court must cause such issues or questions to be distinctly and plainly stated."’ A glance at the section as it stands will convince any legal mind that the great mass of questions which arise in equity actions are still to be tried by the court, or may, in its discretion, be sent to a jury for trial.

In two classes o£ questions only must they, under proper supervision, be sent to a jury; these are questions as to the value of property and as to damages. In the ordinary action brought to •foreclose mechanic’s liens such issues seldom arise. The questions generally are as to whether or not the parties have acquired liens, the nature and amount of the lien, and the equities which exist between the owner, the principal contractor and the various subcontractors. So, in this case, all the questions proposed by the plaintiff to be sent to a -jury for trial, with one exception, relátelo extra work under1 a contract, an alleged subsequent agreement, the payments made under the contract or contracts, and whether or not the defendants were obliged to complete certain work at their own expense, and, if they were, how much did they expend on such work. Hone of these questions affect either the value of property or the damages one party may bo entitled to recover as-against the other, any more tlrau they do in the ordinary action for the dissolution of a copartnership and an accounting, or the foreclosure of a mortgage on real estate. The motion should, therefore, be denied as to all the foregoing questions.

The defendants, however, set up a counterclaim in which they ask for judgment against the plaintiff, not only for the money which they claim they had to expend to complete certain work left undone by the plaintiff, but also for damages caused by his delay. I think under § 970 of the Code, as amended, plaintiff is entitled to have the question of damages for delay submitted to a jury, unless the defendants before the settlement of an order in this case, which must be done on three days notice, stipulate to abandon their claim for damages by reason of the delay, in which event the motion will be altogether denied.

Although the plaintiff argued this motion solely on the ground' that, he was entitled to have the issues in the action tried by a jury as a right, yet as in his brief he lias urged his poverty as a matter addressed to the discretion of the court, it may be proper to say a word on that point. I am not convinced that it is right in any case to allow a party to deviate from the ordinary procedure prescribed by law because that procedure may involve a hardship, unless the poverty is §o great as to warrant the court in allowing him to proceed in forma pauperis. In this case the plaintiff chose to bring his action in- this court, well knowing its course of procedure, when, had he chosen, he could have brought, it in a district court where he could have demanded a trial by jury as a matter of right, and it is not in the interests of justice that such a course should be encouraged.


author: Clement, Ch. J.

text:
    Solomon May, Pl’ff, v. The City of Brooklyn, Def't.

      (City Court of Brooklyn, Special Term,

      Filed January 6, 1892.)

    Municipal cokfobations—Negligence—Dedication of highway.
    Lands formerly in the town of New Lot's were sold to plaintiff and others with reference to a-map on which they appeared hounded hy a street, some of which were purchased by defendant, which for convenience closed said street and opened another fifty feet distant, which was used by the public for over twenty years. Held, that as between plaintiff and the city it was a highway, and that defendant was liable for injuries caused hy material left therein by its employees.

      Action for injuries alleged to have been caused by defendant’s-negligence.

      Ira L. Bamberger, for pl’ff; Almet F. JenJcs, for def’t
   Clement, Ch. J.

The plaintiff proved on the trial of this-case that on December 19, 1889, the employees of the defendant negligently placed upon Dinsmote place, in the twenty-sixth ward of this city, a number of large iron pipes, and left them there-without any warning to travelers, and that, on the following day, one Asher May, while driving the horse and wagon of the plaintiff in said place, and in his employ, without carelessness on his-part, struck the wheels of the wagon against the pipe in the street, and the plaintiff was damaged thereby. It is contended by the counsel for the defendant that Dinsmore place was not a public street at that time. On this point, the plaintiff proved that the-place had been used by the public for over twenty-five years, and that the same is laid out on the map made by the town survey commission, appointed pursuant to chapter 670 of the Laws of 1869.

In the case of Speir v. New Utrecht, 121 N. Y., 420; 31 St. Rep., 414, the court of appeals decided that a private lane does-not become a public highway although the public are allowed to-use it for a period of over twenty years. There must be a dedication, a use and an acceptance, or an act from which an acceptance can be implied. The plaintiff also proved that in 1835 the farm which includes the property occupied by the plaintiff and that owned by the city was mapped, and that, on the map, Fourth street was laid out about fifty feet south of the land now known as Dinsmore place. Lots were sold by the map, and reference-made thereto in the deeds, and between 1858 and 1862 the city of Brooklyn purchased a number of lots located on said map, and for convenience closed Fourth street and opened Dinsmore place-as a. substitute.

It is clear that the owners or tenants of land included in said map had a right of way over the entire width of Dinsmore place, and it may be argued that the city, if it dedicates its own property as a way, cannot afterwards say-that it did not accept such dedication. If proceedings had been taken to open Dinsmoreplace before the annexation of New Lots, the city would have been entitled to an award of only nominal damages. In re Public Parks, 25 St. Rep., 231. I very much doubt if any proceedings could be taken, since the annexation, to open the street, or so much of it as is owned by the city in fee. The party making the dedication and the party to accept it are now the same.

It is not necessary to decide the point before stated, for whether or not Dinsmore place was a city street is immaterial. It was a. highway as between the plaintiff and the city, and the corporation is liable under the case of Brusso v. The City of Buffalo, 90 N. Y., 679. See also Schade v. Albany, 16 N. Y. Supp., 262.

■ Judgment for plaintiff for $300 damages and costs. Findings to be settled on two days notice.


author: Osborne, J.

text:
    Francis H. Boyer, Resp’t, v. Clark D. Rhinehart, App’lt.

      (City Court of Brooklyn, General Term,

      Filed January 25, 1892.)

    1. Evidence—Secondary.
    Plaintiff after notice to produce a letter which, he testified he had delivered or mailed to defendant modifying a contract, offered in evidence a letter press copy of said letter, which defendant denied having received. B.eld, that it was not error to refuse to strike out said copy, and that under the evidence it was for the jury to determine whether defendant ever received the letter.
    3. Contract—Evidence.
    In an action for services in erecting an ice machine, evidence tending to show that machines of the same nature made by plaintiff for other persons were failures is not admissible unless it be shown that they were of the same capacity, size and design and exactly similar to the one in question.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying motion for a new trial.

      Hobbs & Gifford, for app’lt; Johnson & Lamb, for resp’t.
   Osborne, J.

This action was brought to recover a balance -due on a contract made between plaintiff and defendant, by which plaintiff was to furnish the designs and superintend the ereqtion of an absorption ice making machine on defendant’s premises, for -a commission of ten per cent of the cost of the machine, which was estimated to cost $10,738.92. Four hundred dollars of said -commission was to be paid during the progress of the work, and the balance on completion and obtaining the result of fifty tons -of ice per day from said machine. The original contract was in writing and endorsed on a detailed estimate of the cost of the work made by plaintiff. Plaintiff’s contention was that, by the terms of a letter which he wrote to defendant, the original contract was so far modified as to provide that, in case the space allowed for freezing tanks should be too small to hold all the ice •cans specified in the first agreement, then, a daily production of ice in proportion to such reduction should be accepted as satisfactory for the daily working of the machine; said letter further provided that plaintiff should also receive his disbursements for per-sonal expenses, in addition to the ten per cent of the cost. Defendant denied the receipt of this letter, but it is plain, from the evidence in the case, that, owing to want of space, the parties agreed that but three freezing tanks should be used, instead of four, as originally proposed, the effect of which would be to reduce the capability of the machine to produce ice about twenty-five percent, or, in other words, to only call for a production of about thirty-five tons of ice per day instead of fifty tons.

Plaintiff claimed to have completed his work about June 10, 1890. It is admitted that the machine, when completed, never-produced the quantity of ice called for by ’ the specifications. Plaintiff claimechthat this was due to defendant’s failure to supply sufficient water to operate the machine, while the contention of the defendant was that the machine was inherently defective. ¡Plaintiff had a verdict for. the .balance of his commissions remaining unpaid, and from the judgment entered thereon, and from art order denying a motion for a new trial, this appeal is taken.

The learned counsel for the defendant contends that the verdict, was contrary to the evidence. We have carefully gone over all the testimony, and we fail to find any such preponderance in favor- ' of the defendant as to make it our duty to interfere with the verdict of the jury.

Plaintiff testified that the machine was properly constructed and capable of producing, with four tanks, fifty tons of ice daily with ease; that the machine, as built, with only three tanks and a supply of 140 gallons of water per minute, would produce thirty-five "and three-quarter tons of ice each twenty-four hours; that defendant had told him, before the work was commenced, that he had to exceed 400 gallons of water a minute, obtained from & driven well inside the building that contained the tanks, but that, when plaintiff had a test made of the water produced from fouir combined wells after the completion of the work, the total product was only twenty-eight 192-231 gallons per minute.

The testimony on the part of the defendant was that there was-ample water, but that, when the machine was tested, it only produced five to seven tons of ice in twenty-four hours, and that plaintiff’s claim of lack of water was a mere pretext on his part to account for the failure of the machine to work as agreed, and that such failure was due to radical defects in its construction.

We think it was the duty of the learned trial judge, on such a. disputed state of facts, to submit the case to the jury. He charged the jury, in part, as follows: “ On all the evidence in the case, you are to say whether this machine, as constructed, if properly supplied with water, was capable of producing about thirty-six tons--of ice per day. If the machine was capable of producing thirty-five or thirty-six tons of ice per day, then the plaintiff complied with his contract, and is entitled to be paid the balance of the ten per cent. If the machine could not produce thirty-five tons of ice-per day, then the defendant is entitled to a verdict at your hands.”' Ho exception was taken to this portion of the charge, and the-jury, having found in favor of the plaintiff, we find no ground for disturbing their verdict.

The learned counsel for the defendant moved to strike out the letter of plaintiff modifying the contract (Ex. Ho. 2), which motion was denied, and an exception taken thereto. This exhibit, was a press copy of a letter to defendant which plaintiff testified that he either delivered or mailed to plaintiff; the copy was only offered after notice to defendant to produce the original, and: failure to produce it. Defendant denied the receipt of the letter.. We think the exception was not well taken, and that, under the.evidence, it was for the jury to determine whether defendant had ever received it. Defendant himself testified, it may be added,, that but three tanks were to be erected in the first instance, and that for the use of the fourth tank it would be necessary to erect a building.

Defendant sought to show by the witnesses Jameson and Ochs that other absorption machines constructed by plaintiff for them-respectively were failures, which evidence was, on objection, excluded, and exception was taken thereto. We think this evidence was properly excluded. It was not material to prove the results or lack of results obtained by any other machines erected by plaintiff, unless it first appeared that they were of the same capacity, size and design, and exactly similar to the one which was the subject of the action. There was no such evidence offered in this case, and, therefore, the proposed testimony was inadmissible. Sprout v. Newton, 48 Hun, 209; 15 St. Rep., 699.

We are of the opinion that the exception to the refusal to charge as requested at folio 200 was untenable. That proposition involved the necessity of plaintiff’s establishing that the machine with four tanks was capable of producing fifty tons of ice per day when supplied with plenty of water, as a condition to his recovery. The omission of the fourth tank was acceded to by defendant, as he himself testified, so that the question of producing fifty tons per day was no longer in the case. The succeeding request of defendant’s counsel to the same effect, substituting thirty-five for fifty tons as the daily product, was charged by the learned trial judge, and that was all the defendant was entitled to on that point.

None of the other exceptions seem to us to call for discussion.

We accordingly are of the opinion that the judgment and order denying a new trial should be affirmed, with costs.

Yah Wyck, J., concurs.


author: Van Wyck, J.

text:
    Barbara Mauer, Adm’rx, App’lt, v. Robert B. Ferguson, John Bulck and Louis Mehrmann, Resp’ts.

      (City Court of Brooklyn, General Term,

      Filed January 25, 1892.)

    1. Negligence—Dangerous scaffold.
    The owner of adjoining buildings employed defendant F. to repair one of them and the other defendants to repair the other. Both buildings were repaired at the same time and scaffolds were in front of each. Plaintiff's intestate, who was employed by B. & M., got down uponF.’s scaffold without his permission to receive a joist, when the scaffold fell and caused his death. Held, that F. was not liable therefor, as there was no privity of contract between them; nor were the other defendants liable in the absence of proof that they had adopted said scaffold for the use of their workmen.
    "3. Same—Evidence.
    In an action for injuries caused by the fall of a scaffold, a witness who testifies that he did not know what caused it to fall, and that he did not look to see how many nails were in it, should not be allowed to give his opinion as to whether it was put up right.
    Appeal from judgment dismissing the complaint as to defendant Ferguson ; also from judgment in favor of the other defendants, and from order denying motion for a new trial.

      J H. Greensward, for app’lt; A. G. McDonald and John B. Meyenborg, for resp’ts.
   Van Wyck, J.

This is an action to recover, by plaintiff, damages for the death of her husband, on the claim that it was caused •solely by the negligence of the defendants. The defendants, Ferguson'on the one hand, and Bulck and Mehrmann, who are-partners, on the other hand, appeared and defended separately. At the conclusion of plaintiff’s proof the complaint was dismissed .as to Ferguson, and judgment was entered thereupon. The case, at the conclusion of all the proofs, was submitted, as to the other defendants, to the jury, who rendered a verdict in their favor. Judgment was entered thereupon. The plaintiff appeals from both judgments, and also from order denying motion for a new trial as against the defendants Bulck and Mehrmann. Cooper & McKee were the owners of a large four-story frame factory on Gwinnett street, Brooklyn, and a small one-story building adjoining, which was used as their office. At the time of the accident, and for months prior thereto, extensive alterations and repairs were being made to both. They had a separate contract with defendant Ferguson to do one portion of the work, and a separate ■contract with defendants Bulck and Mehrmarin to do the other portion. The latter, while engaged in the performance of their ■contract, and for their use therein, erected a large scaffold sixty feet long in front of the large building some weeks prior to the .accident. The defendant, Ferguson, a few days prior to the ac•cident, being required by his contract to place a cornice over the window of the office building, erected for that purpose a small .scaffold about eight feet high in front of the office, and one of his workmen had used it in putting this cornice in position,

On the day of the accident none of Ferguson’s workmen, were upon this small scaffold. But three of Bulck and Mehrmann’s workmen, including the decedent, Michael Mauer, were at work upon their own large scaffold boarding up the front of the large four story building, when it seems they needed a joist for a brace, and Bodemann, one of the three workmen, went down to .get it and hand it up to Mauer. Mauer, instead of remaining upon the scaffold furnished by his employers, and upon which his work required him to be, got some distance down upon Fergu.son’s small scaffold, which gave way while he was in the act of receiving the joist from Bodemann, precipitating him to the .ground, resulting in his death. The evidence disclosed no reason why he'did not remain on the scaffold furnished him by his employers, .to receive this joist. There is some evidence that Ferguson’s small scaffold was defective in construction, though it had .served the purpose for which Ferguson had erected it, viz.: to ■enable his workmen to place a cornice over the office window. Ferguson constructed this small scaffold for the use of his own workmen, and there is not a particle of proof that he ever authorized or consented that it should be used by Bulck and Mehrmann or their workmen, or that he ever knew that it was so used, or that any express or implied authority or license was ever given by Ferguson to Mauer to use it. So far as can be elicited from the testimony, Mauer had acquired from Ferguson no more right to use it than a stranger passing along the street had to climb upon it. Plaintiff’s own witnesses, the fellow workmen’ of Michael Mauer, and employees of Bulck and Mehrmann, testify that they knew that their employers had nothing to do with this small "scaffold, and that Ferguson built it for his own use in placing the cornice over the office window, and that Ferguson had a separate contract to do a portion of the work distinct from that of Bulck and Mehrmann. In McAlpin v. Powell, 70 N. Y., 126, at p. 130, Judge Miller forcibly states: “To maintain an. action for personal injuries occasioned by the negligence or the want of care of another, it must be made to appear that the defendant .owed some duty or obligation to the party injured, which he failed to discharge or perform. Unless there is some contract, duty or service which a party is bound to fulfil, there can be no negligence, fault or breach of the obligation. The reported cases-where parties are charged for injuries to another occasioned by accident, have been decided upon the principle that there was-negligence in doing or omitting to do some act by which a duty or obligation which the law imposed has been disregarded. The. real point to be determined, then, is whether the defendant owed any duty to the deceased.”

Let us now test the claim of plaintiff against defendant Ferguson by this sound statement of the law. There was no privity of. contract between Ferguson and Mauer, who was not his employee. Mauer was not upon the scaffold by Ferguson’s invitation or upon his business. He had no reason for being there at. all with which Ferguson was connected or concerned. The defendant Feiguson did nothing to cause the death of Mauer, but it. was brought about by his own unauthorized invasion of, or interference with, Ferguson’s rights, in getting upon Ferguson’s scaffold. The deceased had not even a license or permission, express- or implied, from Ferguson to go upon this scaffold. Ferguson was a stranger in this occurrence to Mauer, and to his employers, Bulck and Mehrmann, as much so as if Mauer had been a passerby and had climbed upon this scaffold. Cusick v. Adams, 115 N. Y., 55; 23 St. Rep., 548; Swan v. Jackson, 55 Hun, 194; 27 St. Rep., 941; Loop v. Litchfield, 42 N. Y., 358; see p. 361.

The extension, under certain circumstances, of the duty to be-careful in workmanship, which the constructor of a scaffold owes-to him for whom he has contracted to build it, to those authorized or employed by the owner to use it, though there is no privity of contract between them and the constructor, will not help the. plaintiff herein, for the defendant Ferguson, who was both constructor and owner of this scaffold, did not authorize or employ the decedent Mauer to work thereupon. Devlin v. Smith, 89 N. Y., 470; Coughtry v. Globe Woolen Co., 56 id., 124.

Then again this scaffold can scarcely be deemed a structure imminently dangerous to human life within the meaning of those authorities. Loop v. Litchfield, 42 N. Y., 358; Swan v. Jackson, 55 Hun, 194; 27 St. Rep., 941.

We think the dismissal of the complaint as to Ferguson was proper. This brings us to the consideration of the appeal from the judgment in favor of the defendants, Bulck and Mehrmann, and order denying motion for new trial. They did not construct or own this scaffold, or acquire from Ferguson the right to use it. Under these circumstances, without objection on the part of plaintiff, the case was submitted to the jury on the theory that the. defendants Bulck and Mehrmann were not liable to plaintiff if they did not adopt the platform as their own for the use of their workmen. The jury decided this question against the plaintiff, .and we see no reason to disturb their decision, and do not think it entirely clear that there was sufficient evidence to carry this question to the jury.

This disposes of all the exceptions called to our attention by the appellant, save that taken to the exclusion of the following question put to the witness Bodemann:

“Q. Was that scaffold put up right, do you think?”

This was one of the principal questions to be determined by the jury. This witness was allowed to and did testify that he did not know what made it fall; that the brackets were good ; that he did not know how many nails were in them, and did not look ■to see. Why should he be allowed, under these circumstances, ■to say that it was not put up right ? The only defect attempted to be shown was that there were not enough nails of the right .size in the bracket, and he says he did not look to see the nails and did not know how many were in it. If counsel desired the ■expression of opinion of this witness upon his asserted defects in this scaffold, he should have framed a hypothetical question on the assumption of such defects. The witness says he was ignorant of the existence of any such defects.

Both judgments and the order must be affirmed, with costs.

Osborne, J., concurs.


text:
    Helen E. Porter, App’lt, v. Alden S. Swan, Resp’t.

      (City Court of Brooklyn, General Term,

      Filed January 25, 1892.)

    ^Contract—Alterations—Evidence.
    A clause in a building contract providing for alterations, and that no allowance should be made therefor unless the value thereof was agreed to in writing before going into execution, does not prohibit the parties from subsequently contracting in relation to the same matters, or preclude evidence in an action for extra work that said work was ordered by the owner, who expressly promised to pay therefor, and to show that he waived his right to have the value thereof agreed to in writing.
    Appeal from judgment in favor of defendant, entered upon the report of a referee.
    Action upon two building contracts and for extra work. The answer admitted the making of the contracts, that a small sum wtts due on one of them, and denied generally the other allegations of the complaint, and set up a counterclaim for goods sold ■and delivered.

      Daniel Cameron, for app’lt; Bergen & Dykman, for resp’t
   Van Wyck, J.

There were two building contracts in writing made by Elihu Porter (the contractor and assignor of plaintiff), with the defendant Swan (the owner). One was for the erection of a stable, and the other for the erection of a dwelling. Both were completed, and then taken possession of by defendant. In specifications referred to in each contract, we find this provision, ■“Alterations. It is understood that the owner of the building and the architect .shall have the right to make any alterations, additions or omissions of work or material herein specified or shown on the drawings during the progress of the building that, they may find necessary, and the same shall be acceded to by the contractor and carried into effect without in any way violating or vitiating the contract. And the value of all such alterations, additions or omissions shall be agreed upon in writing between the owner and contractor before going into execution, or no allowance will be made for them by either party.”

The plaintiff brings this action to recover the value of extra-work, or work not included in the contracts, specifications or plans, unless covered by the alteration clause, done by Elihu Porter upon .these buildings at the request of defendant, and for which he expressly promised to pay. On the objection of defendant, all testimony which might show that such work was done,, that deféndant in his conversation requested and employed the-contractor to do this work, expressly promising to pay him for the same, and which might also show defendant to have waived his right to have the value of the work agreed upon in writing,, was excluded, on the ground that it was not in writing in accordance with the specification provision relating to alterations. To-these rulings the plaintiff duly excepted. If it was error to exclude this testimony, then the judgment must be reversed. If this clause deprives the parties thereto of the privilege of mutually agreeing to modify or alter its terms, or of making a new contract in relation to the subject matter thereof, or waiving the requirement that the value of the work shall be reduced to writing, then the rulings cannot be complained of by the plaintiff.. It has always been held that a written agreement could be rescinded or modified by a distinct subsequent oral agreement, provided that such agreement is not invalid under the statute of frauds. 1 Greenleaf on Evidence, 14 ed., §§ 303, 304 and 302.. This clause does not prohibit or enjoin the parties from making a new contract, in whole or in part, in relation to the things contracted about. If they expressly agree to modify the same it is. valid.

It has been frequently held in this state that restrictive clauses, similar to, though not identical with, this one, can be waived expressly or by the acts and conduct of the parties. The common-provision in building contracts, that no payments will be made-without the usual architect’s certificate, is one; the very common-provision in leases that the tenant shall not sublet without the-written permission of the lessor is another. Haden v. Coleman, 73 N. Y., 567; Smith v. Alker, 102 id., 87. The very point presented in this case was raised in Stout v. Jones, 9 St. Rep., 570, general term, fifth department. Therein it was held that a provision in a building contract requiring all orders for extra work to be in writing could be and was actually waived in that case by the acts and conduct of the parties, and ceased to be a prerequisite to a recovery for such.work. This case was affirmed by the court of appeals. 120 N.Y., 638; 30 St. Rep., 1017. This question apparently was: raised in Sutherland v. Morris, 45 Hun, 259; 10 St. Rep., 348, and apparently was decided in favor of the contention of respondent herein. But the opinion should be read in the light of the facts ■disclosed by the appeal book, in which it seems that plaintiff testified that the owner (defendant therein), when asked if he would pay for the extra work not then commenced, said he would not ■allow it, and refused to promise to do so. The same general term, composed of the same justices, cite with'approval Stout v. Jones on the question of waiver of a requirement that a certain thing must be done as a condition precedent to the accruing of a right to another. In the consideration of this question, we have assumed that all the work sued for was included in the alterations and additions provided for in this alteration clause. If it was not, then the restrictions therein do not apply thereto, and cannot be invoked to defeat a recovery for the work. We do not know whether or not it was so included, for the referee excluded the evidence which would have disclosed the fact.

For these reasons we are of the opinion that the judgment ought to be reversed, a new trial ordered, with costs to abide the event, and the order of reference vacated.

Clement, Oh. J., concurs.


text:
    Thomas J. Hayden, App’lt, v. The Brooklyn Elevated Railroad Co., Resp’t.

      (City Court of Brooklyn, General Term,

      Filed January 27, 1892.)

    Negligence—Injury to employee.
    Plaintiff was at work for defendant upon a scaffold at its station preparing a piece of timber and was injured by the fall of the scaffold as a loco motive passed. Several others had previously passed without injury to the scaffold, but plaintiff testified that the locomotive in question Knocked the scaffold down. Held, that it was not the duty of the court to submit the case to the jury on plaintiff’s uncontradicted testimony, in the absence of proof that the engine in question was wider than the others.
    Appeal from judgment dismissing the complaint.

      J. A. Wernberg, for app’lt; Hoadly, Lauterbach & Johnson, for Tesp’t
   Clement, Ch. J.

The plaintiff alleged that on June 2, 1890, he was working on a scaffold erected upon the station of defendant at Fifth avenue and Thirty-sixth street, and that, while he was at his work, said scaffold was struck by an engine of the defendant, and was thrown down, whereby he was severely injured. At the trial the plaintiff was the only witness, and the case was dismissed.

The sole question presented is whether, on the uncontradicted testimony of the plaintiff, the case should have been submitted to the jury. The scaffold was about five feet above the platform, the uprights were about six inches from the edge, and the distance between the platform and the railroad track was about -eighteen inches. The plaintiff was a carpenter, and was “getting ready ” a piece of timber thirteen feet long, and was working on one end of the timber, and Ford, another carpenter, was working at the other end. The station is at the end of the road, and the trains stopped about twenty-five feet from the place where theplaintifi was. The engine was uncoupled and moved a short distance beyond such place, and then back, after the cars from which the engine was detached had been taken out on a new trip. On the day of the accident the plaintiff worked on the scaffold about, half an hour; five or six' engines had passed and repassed him, when he testified that a passing engine knocked down the scaffold, and he fell into the street, a distance of about thirty-six feet He also testifies that he did not know what part of the engine struck the scaffold, and he gave the number of the engine which passed as the scaffolding fell.

The counsel for the plaintiff claims that the plaintiff had a right to assume that the engines were of the same width,.and we are inclined to hold with him 'on that point. The difficulty is-that no proof was given at the trial that engine No. 74 was-wider than the other engines. The substance of the testimony of the plaintiff is that the scaffolding fell as the engine was passing. . His testimony that it was knocked down by a passing engine is a conclusion. At folio 30, the court said: “ It does not appear that there was any difference in the engines.” The counsel replied: “ There must have been.” At folios 31 and 32 ::

“Q. What engines do you.refer to, that passed down within a foot of the platform ? A. I don't really know.”

[f the locomotive No. 74 was wider than the other locomotives,, such fact was easily proven. A man by his eye sight, and without measurements, could tell whether an engine was wide enough, to overlap a platform at a station six inches.

The simple fact that a locomotive was running by when the-scaffolding fell would not raise a presumption that the scaffolding was struck by the locomotive. The timber on which the plaintiff was working may have moved at the time and struck the locomotive, or another timber may have moved. In an action of this kind, the plaintiff was called upon to prove more than that' the scaffolding fell. He should offer some testimony tending to-show that it fell by the carelessness of the defendant, and, further, he should prove the absence of contributory negligence on his. part.

The case of Germann v. The Suburban Rapid Transit Co., 37 St. Rep., 360, is not in point In that case, the plaintiff was injured by reason of the failure' of the. engineer to give warning-that he was about to start his engine, knowing that a man was working at or near the track, and in case the. engine was moved he would be injured.

The case was not dismissed upon the merits, and the judgment should be modified by striking out such words, and in accordance with the practice of the court, where a judgment is so erroneously entered, the respondent is entitled to no costs on the appeal.

Judgment modified, and as modified affirmed, without costs.

Yak Wtck, J., concurs.