author: Per Curiam.

text:
    Andrew McKinney et al., Resp’ts, v. Edward Campion, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    Appeal — Conflicting .evidence.
    In the absence of exceptions to the admission or exclusion of evidence and to the charge, á verdict on conflicting evidence will not be disturbed on appeal.
    Appeal from a judgment, entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, made on the minutes.

      J. Woolsey Shepard, for app’lt; William G. Chittick, Jr., for resp’ts.
   Per Curiam.

— The plaintiffs are partners under the firm name of A. McKinney & Co., are cotton brokers, and members of the New York Cotton Exchange. It is alleged in the complaint that in July and August, 1891, the defendant employed the plaintiffs tó buy 400 bales of cotton, and also to sell 400 bales at prices specified, and that they executed the orders, the commissions for which amount to $40, and also advanced on the defendant’s account $155.15, inclusive of interest. This action was brought to recover these sums. As a sole defense, it is alleged that the defendant was not a dealer in cotton, never owned or had any ; that he never employed the plaintiffs to buy cotton from others, or to sell to others; but that the transactions stated in the complaint and in the plaintiff’s bill of particulars were wagering contracts between the litigants, and void. One of the plaintiffs testified that the defendant directed them to buy 400 bales of cotton of others, and to sell 400 bales on the cotton exchange. This the defendant denied, but the issue was submitted to the jury, under a charge not excepted to, and found for the plaintiffs. The defendant utterly failed to maintain the defense alleged, that the transactions were not between himself and third persons, but were with the plaintiffs. It is apparent that the plaintiffs did not contract with the defendant, but they were merely acting as his agents in buying and selling cotton on the exchange. The court further instructed the jury that if the defendant did not intend to purchase the cotton ordered, or to deliver that which he sold, but merely to speculate on the rise and fall of the article, and this intention was communicated to the plaintiffs, they could not recover their commissions or the money which they had advanced; but in case they found that the plaintiffs had no knowledge of the defendant’s purpose, but executed the orders in good faith, believing that the purchases and sales were real, they were entitled to recover their commissions and advances, though the defendant intended to engage in wagering transactions. No exception was taken to this instruction. This issue was also found for the plaintiffs on evidence sufficient to raise the question, and the verdict is decisive of the rights of the parties. No exceptions to the admission or exclusion of evidence were taken, nor were any exceptions taken to the charge.

The judgment and order should be affirmed, with costs.


source: Caselaw Access Project

author: Follett, J.

license: Public Domain

text:
    Mary O’Reilly, as Administratrix, etc., Resp’t, v. Utah, N. & C. Stage Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    1. Constitutional law — Retroactive effect.
    Section 18, article 1 of state constitution, as amended in 1894, which removed the limitation of amount recoverable in an action for death by wrongful act, is prospective only, and does not apply to causes of action theretofore accruing.
    2. Negligence — Contributory.
    The attempt of plaintiff to cross a street in front of an approaching wagon, was held, under the facts and circumstances of this case, not to have been contributory negligence, as matter of law.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      Charles C. Nadal, for app’lt; Sumner B. Stiles, for resp’t.
   Follett, J.

— This action was begun July 19, 1894, to recover damages arising from the death of the plaintiff’s intestate, caused, it is alleged, by the negligence of an employe of the defendant, a corporation organized under the laws of the territory of Utah, and engaged in carrying mails to and from the post office in the city of New York. On January 8, 1894, defendant’s mail wagon or van, weighing about 4,200 pounds, and carrying 5,000 pounds of mail matter, was being driven along Park row, between North Williams street and the Brooklyn bridge. Terence 0. O’Reilly, while attempting to cross the street in front of the wagon, was run over by it, and so seriously injured that he died, January 10, 1894, from the effects of the injury. The evidence contained in the record is sufficient to support the verdict of the jury that the negligence of the defendant’s driver caused the accident, and that the decedent did not, by his own negligence, contribute thereto. Indeed, the learned counsel for the defendant did not contend at the bar of this court, nor does he argue in his brief, that these questions were determined without or contrary to the weight of evidence. We are asked to consider but two questions as grounds for reversing the judgment. (1) An exception to the charge of the court on the question of contributory negligence, and (2) an exception to the instruction that the jury might award more than $5,000 damages.

Upon the question of contributory negligence the court charged:

“It does not arise at all, in case Mr. O’Reilly crossed a clear street, after looking up and down, with ample opportunity to pass in front of this van, if he had such ample opportunity, and then, by reason of the impetuous driving of the van driver, was struck before he could reach the other sidewalk, when he might have reached it but for the accelerated speed of the horses. There is no contributory negligence in a case under those circumstances. But if you find that such was not the fact, and that he had reached the other side, and that he had stepped down right in front of this moving van, which was only going at a walk, and thus slipped or fell, or in some way got under the vehicle, then there would be contributory negligence, and the defendant would be entitled to a verdict.”

To this instruction the defeddant took the following exceptions:

“Defendant’s counsel: I would like to take an exception to that part of the charge in which you said the question of contributory negligence would not, and does not, arise in this case if, when the deceased started across the street from the westerly side, he had a clear street, and unobstructed by the van, and an opportunity to get across.
“The court: I will leave the fact to the jury to determine whether that was so or not, whether he did have that clear space, whether there was an opportunity to pass. I do not say there was. I leave it to the jury to say.
“ Defendant’s counsel: It is not on that point I take my exception. It is on the other; that in that case there would be no contributory negligence.”

It is not asserted that the decedent was negligent in any respect, except in the time and manner of attempting to cross the street. By this instruction the jury was charged that if they found as a fact that the street was so clear that O’Reilly had ample opportunity to cross in front of the van, and attempted to do so after ascertaining the fact, and was run over by the impetuous driving of the defendant’s employe, that no contributory negligence was shown. The issues as to the condition of the street and the manner in which the decedent attempted to cross it were left as questions of fact for the jury, and whether or not he, by his own negligence, contributed to cause the accident, depended upon how these facts were found. The court further charged upon this question:

“ (3) IE the negligence of the deceased contributed in any degree to the injuries complained of, this plaintff cannot recover. (4) The burdén of proof is upon the plaintiff to satisfy the jury by a preponderance of evidence that there was no contributory negligence on the part of the deceased.” “ (9) If the view was unobstructed, and the wagon in plain sight, at the time he (decedent) started to cross the street, it is evidence of negligence if the deceased, O’Reilly, did not see it approaching.” “If the view ■was unobstrected, and the wagon in plain sight, at the time he started to cross the street, he was bound to look; and, if the jury should find that he did not look both ways, they may take that into consideration on the subject of negligence.” “(18) It was the duty of the deceased, in crossing the street, to use his eyes and ears to avoid danger, if possible; and he had no right to proceed in such a manner that collision could not be avoided, and take the chances of getting across the street without injury. (19) If the jury shall find that it was negligence in the deceased to attempt to cross the street when the vehicle was approaching in the manner shown by the testimony, the plaintiff cannot recover.”

In addition to these instructions the court charged (twenty-eighth proposition) that, if the decedent crossed without looking to either side of him, the plaintiff cannot recover, and, by the twenty-ninth proposition, that if the jury found there was an unobstructed view of the approaching wagon, and decedent did not observe it until within ten feet of him, and then continued to cross in front of the horses, moving at a rapid speed, it was negligence, and the plaintiff cannot recover. Whether the facts existed which defendant asserted were evidence of contributory negligence was left for the determination of the jury, and the rule of law applicable to the facts which they should find to have existed was correctly stated. Construing the charge as an entirety, the rule of contributory negligence was charged most favorably to the defendant, and it has no just ground for complaint in this respect.

By the complaint, as originally framed, a judgment for $5,000 damages was demanded. At the close of the evidence the plaintiff - moved that the complaint be so amended so as to increase the demand to $25,000, which motion was granted, and the defendant excepted. The court instructed the jury that it might award such pecuniary damages as the widow and the next of kin had sustained by reason of the death of the intestate, not exceeding $25,000. To the instruction that the jury might award more than $5,000 damages the defendant excepted. By these exceptions the question is presented whether the plaintiff’s right to recover damages was enlarged by the eighteenth section of the first article of the constitution, adopted in November, 1894, which took effect January 1, 1895, and provides:

“Sec. 18. The right of action now existing to recover damages for injuries resulting in death, shall never be abrogated; and the amount recoverable shall not be subject to any statutory limitation.”

This question must be resolved by determining whether the constitutional provision is retroactive, and affected rights and liabilities existing prior to the time when it took effect. Before considering the legal rules applicable to the case, it will be well to bring to mind the nature of the right sought to be enforced in this action. The statutes of this state do not continue the right of action existing at common law in favor of a person negligently or wrongfully injured to his personal representatives, but they create a new right, unknown to the common law, to recover “a fair and just compensation for the pecuniary injuries resulting from the decedent’s death,” not exceeding $5,000, “exclusively for the benefit of the decedent’s husband or wife or next of kin.” Code Civ. Proc. §§ 1903, 1904; Whitford v. Railroad Co., 23 N. Y. 465. Upon the death of the intestate his administratrix had a fixed right to recover the damages sustained by his wife or next of kin by reason of his death, and the statute giving that right limited the defendant’s liability to $5,000. Both litigants had rights and liabilities created and limited by these statutory provisions. By these statutes a new remedy was not simply provided, but a new right and liability were created, and the statutory provision became part of the substantive law of the state. Statutes affecting remedies, and rules of procedure of enforcing rights, are declared to be retroactive on grounds which would be deemed quite insufficient to give a retroactive effect to statutes enlarging or restricting substantive rights; and the cases arising under such statutes are not precisely in point, and need not be specially considered. The effect of the constitutional provision above quoted is twofold ; it imposes a greater liability on persons wrongfully or unlawfully causing the death of others, and confers additional benefits on persons in whose favor a right of action is given for such wrongs; and such provisions, whether constitutional or statutory, are seldom construed to have a retroactive effect End. Interp. St. § 277 et seq., and cases cited. “A law is never to have retroactive effect unless its express letter or clearly manifested intention requires that it should have such effect. If all the language can be satisfied by giving it prospective operation, it should have such operation only.” Railroad Co. v. Van Horn, 57 N. Y. 473; End. Interp. St. § 271 et seq. ; Potters’s Dwar. St. 162; Sedg. St & Const. Law (2d ed.) 160. The rule is as applicable to constitutional as to statutory provisions. “ Constitutions as well as statutes are construed to operate prospective!}'', unless on the face of the instrument or enactment the contrary intention is manifested beyond reasonable doubt.” Shreveport v. Cole, 129 U. S. 36 ; Cooley, Const. Lim. (3d ed.) 62. These rules have been so long and firmly established in all enlightened states that they need not be supported by the citation of precedents. There is no express provision in the constitution that the section quoted shall affect rights or liabilities arising out of past transactions, or is there a hint that the section was intended to have a retroactive effect. No circumstances existing at the time the section was formulated or adopted have been called to our attention, nor do we know of any which would justify an inference that it was intended that the provision should have a retroactive effect. Clearly, the language of the section can be fully satisfied by giving it a prospective operation, and, so far as we know, every rule for determining how statutes shall operate, whether retrospectively or prospectively, will be observed and enforced by that construction. Whoever asserts that a constitution or statute has a retroactive effect must bear the burden of proving it, and we think the plaintiff has failed to sustain her contention, either by precedent or upon principle. The evils which flow from constitutional or statutory provisions enlarging or diminishing rights or liabilities arising out of past transactions have been so often and forcibly stated in judicial decisions and by text writers, and are so well understood, that it would be a work of supererogation to restate them. Retroactive legislation, affecting crimes and penalties — ex post facto laws — and the obligations of contracts, is prohibited by the federal constitution; and the evils arising from such legislation; affecting other subjects, are as great, except the interests are less numerous, and perhaps not so important.

The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event, unless the plaintiff stipulates to reduce the verdict and the judgment entered thereon to $5,000 damages, with interest thereon from the date of the death of the decedent to the date of the entry of the judgment, in which case the judgment should be modified in accordance therewith, and, as modified, affirmed, without costs to either party. All concur.


author: O’Brien, J.

text:
    The People ex rel. Commissioners of Charities and Corrections, Resp’t, v. Charles C. Schildwachter, Jr., App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

      1. Bastardy — Appeal.
    An appeal, under section 864 of the Code of Criminal Procedure, to the general sessions from an order in a bastardy proceeding, requires a new trial.
    3. Same — Evidence.
    Upon such new trial, no part of the testimony and proceedings taken before the magistrate is admissible, except the testimony of the mother of the bastard which, in case she is dead or insane, is receivable in evidence.
    8. Same — Review.
    Where the defendant gives, under section 851 of the Code of Criminal Procedure, an undertaking for his appearance only, the court of sessions is at liberty, upon the appeal, to review the entire order made by the magistrates.
    Appeal from an order of the court of general sessions, affirming an order of filiation made by the court of special sessions.

      David Welch, for app’lt; David Milliken, Jr., for resp’t.
   O’Brien, J.

— The relator alleged that on the 13th day of August, 1892, in the city of New York, she was delivered of an illegitimate child, and that the defendant is the father. On the 12th of May, 1894, the defendant,'on this charge, was arrested on the complaint of one of the charity commissioners, and gave a bond for his appearance before the police j ustices. ■ An examination into the merits was had before two police magistrates, and to sustain the charge the relator testified that on November 28,1891, she had sexual relations with the defendant, and that she gave birth to a male child, of which the defendant is the father. Another witness testified to admissions made by the defendant that he was the father. On the other hand, many witnesses were called by the defendant, who testified to facts and circumstances for the purpose of impeaching the complainant’s character for chastity, but no evidence was introduced of sexual intercourse between her and any other person within the period of gestation, nor within a period of three months prior thereto. The judges at special sessions sustained the charge, and made the order of filiation, upon which the defendant gave an undertaking for his appearance at the general sessions, and took an appeal to that court. By stipulation the testimony of the relator was taken before one of the clerks of the general sessions, and, questions having arisen as to rulings upon the admissibility of evidence, the proceedings were removed before the court. The record shows that, upon the parties appearing, and without any further evidence being taken, the court said:

“It is conceded on the record that within the period of gestation the defendant, Charles C. Schildwachter, has had connection with this relator. Even though it should appear that two hundred and fifty others had also within the same period criminal connection with her, I shall hold and sustain the order of filiation.”

To this ruling an exception was taken, and the counsel for the defendant said:

“ I now offer to prove to the court that, outside of the acts of the defendant in having had relations with this woman within the period of gestation, other men have had 'similar relations with her during the same period of time. I also offer to prove the separate and distinct acts and transactions of this woman, the relator, prior to the period of gestation, and connect her with consorting with prostitutes and other disreputable persons, men and women. * * * and more particularly referring to the period of on or about November 28, 1891, and also subsequent to the birth of the child, August 13, 1892; that counsel also wishes to offer in evidence to impeach the credibility of the. relator by documentary and other proof.”

The court said:

“ In the light of all that counsel has stated that he desires to prove, he having conceded that his client has had criminal relations with the relator within the period of gestation, I think that would be sufficient to sustain the order of filiation made by the court below.”

To which the counsel for defendant said :

“ I rake exception to your honor’s ruling refusing to give me an opportunity to present those witnesses and present such proof.”

Thereupon, against the defendant's objection, the record in the case in the court of special sessions was offered in evidence, and admitted, to which ruling defendant’s counsel also excepted.

The extracts made from the record are sufficient to show the danger of a departure from the regular procedure in the trial of any question before the court. Section 864 of the Code of Criminal Procedure, which relates to “appeals from the orders of magistrates respecting bastards,” provides:

“ The court (meaning the general sessions) must immediately, or at any time it may appoint, proceed to hear the allegations and proofs of the parties; and the party in whose favor the order was made must support it by evidence. If the mother of the bastard is dead or insane, her testimony on the examination before the magistrate is receivable in evidence.”

It will thus be seen that appeals from magistrates to the court of general sessison, like appeals from district courts to a county court, involve a new trial, and it is only upon showing that the mother is dead or insane that her former evidence would be admissible upon such trial. That there was no new trial before the general sessions this record discloses. The relator was produced and examined in chief before one of the clerks, and before her examination was finished the dispute in regard to certain questions arose between counsel, and the whole matter was then brought before the court. The cross-examination of the relator was not again resumed, and the defendant was not permitted to introduce any evidence, the learned judge having concluded that there was sufficient in the testimony already taken before the clerk, and in the other record before the police magistrates, together with the statement of counsel for the defendant (who practically admitted the relations between the defendant and the relator in November, 1891), to justify an affirmance of the order of filiation made by the police justices. We do not think the court had the right to deprive the defendant of the benefit secured to him by appeal, of having a new trial upon the charge, which included not only the right fully to cross-examine the relator, but also to produce and examine his own witnesses. '

We think it was also error to admit the testimony and all the proceedings taken before the police magistrates. It may be urged that the manner in which the defendant attempted to present his proof in the form of wholesale offers was equally reprehensible. Thus evidence affecting the complainant’s chastity subsequent to the birth of the child, or long prior to the period of gestation, could have no material bearing upon the question at issue ns to whether the defendant was the father of the child, and, if offered, it would be very properly excluded as incompetent. In addition, however, to the offer to present such testimony, we have the further offer of testimony covering a period which, in respect to the charge made, would have rendered it competent. An offer to produce testimony, some of which was good and some bad, would usually be of no avail, because the court ordinarily should not receive or entertain jt, and a refusal to do so would not be error. But where, as here, without permitting the production of any witness on defendant’s behalf, the court gave judgment, and thus excluded the presentation of evidence by the defendant, we do not see what other course was open to him to make the offer to submit such evidence as he could produce if allowed to do so. As shown by the record, before the relator’s examination was closed, and before the defendant had the opportunity to present any evidence, the court said : “It is conceded on the record that within the period of gestation, the defendant, Charles C. Schildwatchter, has had connection with this relator. Even though it should appear that two hundred and fifty others, had also within the same period criminal connection with her, I should hold and sustain the order of filiation.”

If the new trial, as contemplated, had been had, and if the relator, by evidence, had sustained the charge, and the defendant had had the opportunity to present such evidence as was competent and, notwithstanding the latter, the court had still been of opinion that the defendant was the father, it would give the conclusion all the force and weight to be attached to a determination reached upon conflicting evidence. We cannot, however, overlook the fact that the right which is given to the defendant of cross-examining the relator and of producing witnesses in his own' behalf was denied him, for which error alone we think the orde'r should be reversed.

The respondents insist that, the defendant, after affirmance, having executed a bond to comply with the order of filiation, and no question being raised as to the amount of the allowance, the appeal should be dismissed. This claim is based upon section 861 of the Code of Criminal Procedure, which provides:

“A person deeming himself aggrieved by the order of two magistrates, made pursuant to the last chapter, may appeal therefrom to the next court of sesssions of the county; except that a person who has executed an undertaking to obey an order of filiation and indemnity the public, as provided in section eight hundred and fifty-one, cannot appeal from any other part of the order rhentioned in section eight hundred and fifty than that which fixes the weekly or other allowance to be paid.”

Section 851 provides for two distinct kinds of undertakings, and is in the alternative, either that the. defendant will pay the sum directed for the support of the child, or will appear at the next ■court of sessions of "the county to answer the .charge, and obey its order thereon. If an undertaking had been given, as provided in the first part of section 852, for the payment of the weekly sum, then the respondents would be right in their contention that the only question that could be raised was as to the amount of the allowance. The undertaking given by this defendant was, first, for his appearance before the magistrates after his arrest, and after-wards, for his appearance at the general sessions upon the appeal taken by him from the order of filiation made at the special sessions. It will be noticed that section 851 affects only appeals to the court of general sessions; and where, as here, the defendant gave an undertaking only for his appearance, the court of general sessions was at liberty upon the appeal to review the entire order-made by the magistrates. Our conclusion therefore is that the or-: der of the general sessions, affirming the order of filiation made by the special sessions, should be reversed, and the matter remitted to the general sessions fora rehearing pursuant to the provisions of the Code of Criminal Procedure regulating appeals from the orders of judges of the special sessions.

Follett, J., concurs.

Yak Brunt, P. J. — I concur. I think that the appellant had a right to show that the child in question may not have been the ’ result of his efforts, but rather was due to the operations of a syndicate.


text:
    The People ex rel. John Gillespie, App’lt, v. Board of Fire Commissioners of the City of New York, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    Appeal — Harmless error.
    In a proceeding to discharge a fireman, a refusal to adjourn a hearing before the board of fire commissioners, on the ground of the absence of a witness, if error, is harmless, where the relator was permitted to submit the affidavit of the witness as evidence in the case.

      Certiorari to review the decision of the board of fire commissioners in discharging relator from the fire department of the city of New York.

      Thomas F. Byrne, for relator; William L. Findley, for resp’t
   O’Brien, J.

— The relator was a member of the uniformed force of the fire department of the city of New York from May 3, 1875, until June 22,1888, when he was dismissed upon charges of bad conduct, in using improper language to another fireman, and absence without leave. The relator was required to attend before the commissioners on June 20, 1888, and on that day the doctor connected with the department visited him and refused him sick leave. The relator, however, did not attend, and the hearing was adjourned until June 22d, with directions to have additional charges of absence without leave preferred. On the latter date the relator again made default, neither appearing nor sending any excuse for his nonappearance, and the commissioners then proceeded to try the charges, and having concluded that they were sustained, dismissed the relator. In August, 1888, the relator applied to the commissioners for leave to open the default and to answer, and for a rehearing, upon affidavits tending to show that from June 19 to June 22, 1888, he was suffering from a severe laceration of the lower lip, which he claimed he had received on the 16th of June, which rendered him incapable of attending to duty, and that on June 22d, the date for which the hearing was set down, he sent a messenger to notify the commissioners of his condition, but that such messenger was prevented from presenting the relator’s excuse by beinu oblidged to attend to his own business. The commissioners in October granted such hearing, setting it down for November 8, 1888, upon which day the relator attended with his witnesses, and the charges were again examined into. The relator produced witnesses who testified to substantially the same state of facts as appeared in the affidavits asking for a hearing, namely, that the laceration of the relator’s lip was so serious as to incapacitate him for duty. As against such witnesses, the commissioners had the testimony of the doctor of the department who had visited him, and who testified that he found him at the time of his visit in a state of intoxication, and noticed no such condition o£ the face or lip as would render him unable to perform his duty. This supported by the testimony of the foreman of the company, who testified that he was in quarters on the 17th, 18th, and 19th of June, and that on the 17th and 18th, both being dates after the relator received the wound to the lip, as claimed, the relator was present and went with the company to a fire ; that during the period from June 16th to the evening of June 19th the relator made no complaint of being unable to perform duty, but performed it in the regular way, and that on the evening of the 19th he left quarters, and did not return after that. On the 18th of June he was served with a. copy of the charges and notice of trial for the 20th by the foreman at the quarters of the company, and on the evening of June 20th he was served with notice of the adjournment to the 22d.

In this state of the record, we do not think that the decision holding the relator guilty upon the charges was without evidence to support it, or against the preponderance of evidence, nor do we think, from the treatment accorded the relator by the commissioners, that the charge he makes of prejudice against him has been sustained. He was given two opportunities to appear and answer and except his statement that he was sick on the 20th, and that his messenger did not deliver his message on the 22d, no excuse is presented for his failure to attend and answer the charges. Hot-withstanding this, a rehearing was given him, and an opportunity to present all his witnesses, and the question was again inquired into, as seen, on Hovember 8,1888, and after a full hearing the charges were found to have been sustained. The only criticism made as to the trial had in Hovember was that the opportunity was not afforded the relator of obtaining evidence of the doctor who attended him. The counsel stated to the commissioners that the doctor had been snpoenaed and promised to attend. We do not think, however, after all the time and opportunity given to the relator, that the commissioners were obliged again to adjourn to suit the convenience of one of relator’s witnesses. Apart, however from this, no barm was done, because the commissioners permitted the relator to submit the affidavit of the doctor, and it appears in the record just as would his testimony, and goes only to the extent of showing that the relator was treated for a lacerated lip. Upon the entire case, we think the conclusion at which the commissioners undoubtedly arrived was justified, to the effect that the wound was not so serious as to unfit the l'elator for performing his duty, and that this was afterwards availed of as a pretext to excuse an ^absence which according to the testimony of the doctor as to condition in which he found the relator when he visited him, and as to the admissions made to him by the relator, was d ue to intoxication. _

It will be noticed that we have not commented upon the fact that this proceeding was allowed to slumber from the early part of 1889, until it was brought on for hearing at the June term in 1895; and accepting the new excuse given that the relator was without means, still the fact remains that here, again, as all through-the proceedings, the evidence is furnished of a failure to .show any diligence, or care in observing the rules of the department, or in pursuing the remedy which was open to him when, as claimed, he was aggrieved by the action of the commissioners.

Our conclusion is that the writ should be quashed, with costs.

All concur


text:
    State of South Dakota, App’lt, v. John T. McChesney et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    Pleading — Answer—J cinder.
    A denial and defense of new matter, while they may be pleaded in the same answer, cannot he joined in the same defense.
    Appeal from an order, denying a motion to strike out from the affirmative defenses in the answer certain specific denials as redundant.

      John S. Melcher, for app’lt ; Charles A. Deshon, for resp’t.
   Per Curiam.

— This action was begun February 11, 1895,- to recover on a bond executed by the defendant as surety for William W. Taylor, the treasurer of the plaintiff. It is alleged that the treasurer is a defaulter to the state in a sum exceeding the penalty of the bond. The answer does not contain a general denial, — a denial of all the allegations of the complaint, — but there are several specific denials set forth in the first defense. In all the other defenses, two to eight inclusive, new matter is set up as defenses ; and in all of them the following words appear, which the plaintiff moves to strike out: “ Reiterates the denials of the •first defense, and alleges.” Then follows the new matter. An affirmative defense, not including a counterclaim, necessarily admits and avoids the cause of action set out in the complaint, and .a denial, general or specific, cannot be included and form a part of such defense. A denial, general or specific, may be pleaded in the same answer as a separate defense, but not as a part of a plea of new matter. “ It is elementary that a defense of new matter should be pleaded; and, as new matter must of necessity be a distinct defense from a denial, it follows that it cannot properly be associated or mingled up with denials, general or specific, in ■one paragraph or plea.” Pom. Code Rem. § 690. By permitting a general or specific denial to be joined with an affirmative defense, a plaintiff would be effectually deprived of the right to de-. mur to the new matter pleaded as an affirmative defense. In case an action should be brought to recover on a contract for the payment of money, and the defendant should plead as a separate defense that, the contracting parties being more than fifty years of age, the contract was void, and then conclude the new matter with a general or specific denial the plaintiff could not safely demur to the defense. In the case supposed, the plaintiff could move to strike out the new matter as frivolous; but, in case the new matter should require argument to show that the defense was frivolous, the validity of the defense could not be tested on motion.

The order should be reversed, with $10 costs and disbursements, and the motion granted, with $10 costs.


text:
    John Francis Maher et al., Resp’ts, v. Della Garry et al., as Executors, etc., App’lts.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    Injunction — Breach op contract.
    An injunction, restraining executor's from terminating or modifying a contract between plaintiffs and testator, under which a business has been' conducted for several years, is properly continued pendente lite, where a question, which lies at the foundation of the case, will have to be determined on the motion, and it would be well-nigh impossible, if the business should be broken up and destroyed in the meantime, to compensate the plaintiffs in damages in case they should establish their right to have the contract specifically performed.
    Appeal from an order continuing an injunction during the pendency of the action.

      Samuel Untermyer, for app’lt; Frederick R. Kellogg, for resp’ts.
   Per Curiam.

— It is clear that in case the written contract under seal, entered into May 14,1892, between the defendants’ testator and the plaintiffs, has not been modified, this action cannot be maintained. It is alleged in the complaint:

“ That the arrangement set forth in the complaint was first suggested by the said Thomas Garry, and was made and entered into at his request. That after the said contract was drafted and presented to these plaintiffs for signature, said plaintiffs, in the presence of said Thomas Garry and of other witnesses, objected to signing the said contract in its then existing form, their objection being specifically based upon the paragraphs marked ‘ Eleventh ’ and 1 Twenty-third.’ That the said plaintiffs, and each of them, positively refused to become parties to any agreement on such conditions. That thereupon said Thomas Garry, after consideration of the matter, stated to the plaintiffs, in the presence of witnesses, that, if the plaintiffs would sign the contract in the form as. drawn, he would have a codicil attached to his will providing that his executors should have no right or power to exercise or avail themselves of any power set forth in the agreement, or any part thereof, to terminate, rescind, annul, or alter said contract as long as the plaintiffs should comply with the duties imposed upon them thereby. That thereupon the said plaintiffs consented to and did sign the said contract, stating distinctly to the' said Thomas Garry, in the presence of witnesses, that they did so solely in reliance upon his said promise, and on the condition that he should fully carry out the same. That in signing said contract said plaintiffs and each of them, did so rely.”

An answer has not been served. The equities of the complaint are not denied, neither is this allegation controverted by affidavits. It is supported in behalf of plaintiffs by an affidavit of one of the executors and by the draftsman of the contract, who testify that they were present and heard the oral agreement made which is averred in the paragraph of the complaint above quoted. Unless this allegation is denied in the answer, the question whether the oral modifications can be proved by the testimony of witnesses who were present when made will not arise. The question will be, is such an oral modification valid? This question lies at the foundation of the case, aud ought not to be determined on a motion, unless so clear as to admit of little doubt. If the allegations contained in the paragraph quoted are not to be denied, the defendants can raise the question of their sufficiency by demurrer. The injunction does not change, but preserves, the relation of the parties in their business as establithed by the contract under which it has been carried on for the past three years. Should the plaintiffs establish the right to have the modified agreement specifically performed, and in the meantime should the business be broken up and destroyed, it would be well-nigh impossible to compensate them in damages.

Under the circumstances, we think the order should be affirmed, with $10 costs and disbursements.


author: Van Brunt, J.

text:
    James McGrath, as Administrator, etc., Resp’t, v. Brooklyn, Queens County & Suburban Railroad Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    Negligence — Contributory.
    Biding on the steps of a street car is not, as matter of law, contributory negligence,' where, by reason of the crowded condition of the car, the passenger was compelled and permitted to ride on the steps.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      J. C. Bergen, for app’lt; J. McG. Goodale, for resp’t.
   Van Brunt, J.

— This action was brought by the administrator to recover damages for the negligent killing of his son, the intestate, while the latter was a passenger upon a train of trolley cars owned and operated by the defendant. The evidence in the case showed that on the 1st of July, 1894, the deceased, together with a large party of friends and companions, boarded this train at a station known as “ Woodhaven.” The cars were very much crowded by the accession of the party which accompanied the deceased, and there was nothing like enough seats to accommodate all the passengers ; and it would appear that all the standing places were also occupied, many of the passengers being obliged to stand on the foot rails — a few of them, only, being fortunate enough to get into the aisles.

It is claimed upon the part of the appellant that the deceased, upon boarding the train, entered into the rear car, and that he was in the middle of the body of the car, and that after the train had started he moved from his position, and passed to the front or motor car; and it is urged that he was guilty of contributory negligence in leaving a position of safety in the second car, and occupying a place ef danger in the first car. If the evidence supported the contention of the appellant, so that the jury was compelled to find the facts as now claimed by it, a grave question might be presented, as to whether the court would not have been bound to dismiss the complaint upon the ground of contributory negligence; but the difficulty with the appellant’s position is that there was ample evidence from which the jury might find that the deceased never entered the rear car, but boarded the first car, and was transported — as far as he was transported — upon this car. It is true that one of the witnesses, Hannah Fuchs, testified to seeing him upon the second car, among the crowd, and that subsequently she saw him on the front car, standing on the step of the car — the car going fast and rocking — and she shouted to him, “Look out, or you will-fall,” and that he said, “I am all right,” and almost immediately he fell back and was killed. But the evidence of this witness in regard to the fact of having seen the plaintiff in this second car is not entirely satisfactory, because, upon examination, it will be observed that she took but little notice of the deceased, and that she did not see him leave the second car and go to the first car, or anything of that kind. It is also claimed on the part of the appellant that- the witness Klein testified that the deceased boarded the second car. An examination of Klein’s testimony, however, shows exactly the contrary. It is true that he says, “I seen him board the second car.” But he qualified that immediately after, when he was asked, “ Was he on the platform of the car, or on the step ? ” by saying that he saw him on the step; that he heard him speak to the young men and girls to hurry up, and not keep the car waiting — and the witness refused to testified that he saw him upon the platform. He further testified that he and the deceased boarded the car together, Klein going through the car to take his seat. Klein boarded the first car. From this evidence it is apparent that the jury had the right to come to" the conclusion that the deceased never boarded the second car, but that when the car started he wot riding on the step of the first car, the car being so crowded that it was impossible to accommodate all the passengers which had been taken. Under these circumstances, it does not appear that there was contributory negligence, as matter of law; the jury not being required to find, as is claimed on the part of the appelant, that the deceased left a position of safety, and voluntarily got upon the step of the front car, from which he fell, thus putting himself into a position of danger. Neither can it be held, as .matter of law, under the evidence in ¿his case, that it was contributory negligence to ride upon the step of the car. The evidence is that the car was crowded to overflowing; that these passengers were compelled to hang on wherever they could ; and that they were permitted to do so, and in fact invited to do so, by the persons in charge of these cars permitting them to enter in its crowded condition. It is true that the witness Fuchs swears that she warned the deceased, but her' action appears to have been occasioned by the high rate of speed at which the cars were running, and the jolting and jerking which such high rate of speed caused.

Another question which is suggested is that there was no evidence of negligence in the management of the cars by the defendant’s employes; that the evidence in regard to speed is entirely conjectural, and is not sufficient to support a finding of negligence. All evidence of this character must necessarily be examined with care, in order to determine as to what its foundation is. Questions of time and questions of speed are matters of such a character that evidence in respect to them has very litle reliability. But the physical effects of the running of the train are established by several witnesses. People are shaken around or shaken off their seats either by the speed of the car or the roughness of the road, and that in a manner which certainly is not consistent with prudent maintenance and skillful management. The jury had a right to find that this violent and unequal motion was the cause of the deceased’s being shaken off, and of his falling between the cars.

It is urged that the refusal of the court to charge that “the fact that he (deceased) was riding upon the step, instead of within the car or upon the platform of the car, was negligence per se, which bars his recovery,” was error. Upon an examination of the record, it will be seen that this request to charge was coupled with other propositions, the whole request being:

“I ask your honor to charge that if the plaintiff’s injury arose, not from the fact of his jumping off the car, but was the result of an involuntary act, being simple falling from the step running* alongside of the car, the fact that he was riding upon the step, instead of within the car, or upon the platform of the car, is negligence per se, which bars his recovery.”

It is clear that the defendant was not entitled to these propositions. Under the circumstances of the case, the jury had a right to find that the deceased, in riding upon the step of the car, was not necessarily negligent. In fact, the court charged the jury that it was not for the court to say, arbitrarily, that it was negligence, in and of itself, as called for by the proposition which it was asked to charge; and it instructed the jury to take that fact into consideration, and if they thought that under all the circumstances of the case, as laid before them by the witnesses, it was negligent for the deceased to stand where he stood, and in consequence of that negligence he was injured, they should render a verdict for the defendant. This was submitting to the jury all that could be required. The evidence in the' case justified the jury in finding that in consequence of the crowded condition of these cars the passengers were compelled to ride upon the steps, and that .they had been accepted as passengers in such a condition of the cars, and that, notwithstanding the dangerous position in which these passengers were undoubtedly placed, the cars were run at a high rate-of speed, and the deceased was thereby shaken off.

Exception is also taken to the following charge of the court: The plaintiff’s counsel asked the court to charge as follows :

“I ask your honor to charge that a conductor permitting a passenger on a crowded car — where there are no seats or platform room — to stand on the foot rail of the car is an implied assurance that the speed will not be accelerated in ■ a way Jo endanger the passenger while he stands there.” 1

This the court charged. The appellant’s counsel stated:

I desire to except, on the ground that the facts of the request are not applicable to this case, it being shown that this man was within the body of the car before the accident.”

Thus the exception is based upon an assumption, the contrary of which the jury had a right to find. Immediately thereafter the court expressly charged the proposition that if a passenger enters the car, and obtains a place of safety, and voluntarily leaves the place of safety, and places himself in á place of danger, and if, through putting himself'in that place of danger, injury is sustained, then no recovery could be had. It will thus be seen, upon an examination of the whole case, that the rights of the appellant were protected by the learned judge in his charge, and the employes of the appellant were held to no stricter accountability than the law requires.

There are other exceptions to the charge, but it is not necessary to notice them. Upon the whole case, we are of the opinion that no error was committed which calls for a reversal of the judgment. The judgpient and order appealed from should therefore be affirmed, with costs. All concur.


author: Van Brunt, P. J.

text:
    The People ex rel. Rector, etc., of St. Ann Church, App’lt, v. Ashbel P. Fitch, as Comptroller, etc., App’lt

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    Municipal corporation — Assessment—Church.
    Under chap. 47 of 1894, which authorizes the apportionment of an assessment on church property, such apportionment must he made according to area, and not with reference to the amount of benefit received.
    Certiorari to review the action ot the comptroller of the city of New York in apportioning an assessment on church property.

      L. O. Van Doren, for relator ; Geo. L. Sterling, for resp’t.
   Van Brunt, P. J.

— The relator is the owner of a large tract of land in the Twenty-third ward, comprising most of the block bounded by 139th street, 141st street, St. Ann’s avenue, and Brook avenue. On the 30th of August, 1889, an assesment was confirmed to reimburse the city for the expense of acquiring title to the lands lying within the lines of East 139th street between Rider and St. Abu’s avenues. This assessment was confirmed by an order of this court. The total costs of the proceeding was $11,974,70, and the amount assessed against the relator’s property, with which we are here concerned, was the sum of $2,232.44. A part of this land had been conveyed to the church for cemetery purposes only, and a part for other than cemetery purposes. By chapter 47 of the Laws of 1894 the comptroller was authorized to apportion this assessment between that portion of such lands conveyed to said church and held and used by it for cemetery purposes and that portion of said lands' not so held for cemetery purposes by said church, ratably to the proportion between said cemetery lands and the remaining lands of said church so assessed, and to cancel and annul that proportion of said assessments which said comptroller should so apportion as levied and made against .the said cemetery land of said church. The comptroller did apportion this assessment between that portion of the lands conveyed to the church and held and used by it for cemetery purpóses and that portion of said land not so held for cemetery purposes by said church ratably to the proportion between said cemetery lands and the remaining lands of said church so assessed. It appears, however, upon an examination of the ajjportionment, that the assessment was apportioned with reference to the amount of benefits received, and not in accordance with the area of each parcel; and to review this decision of the comptroller this writ of certiorari was issued.

The question presented, therefore, is whether the comptroller was required to apportion this assessment with reference to the area of the tracts or with reference to the amount of benefit received. If seems to us that there can be but one answer to this question. Attempting to apportion the assessment according to what the comptroller might think was the benefit received, would be virtually the levying of a new assessment. Such a proceeding does not seem to have been contemplated by the act. The comptroller was directed by the act to apportion the assessment ratably between the lands held for cemetery purposes and those not so held, and the only way, it seems to us, in which this ratable apportionment could take place would be by apportioning the assessment according to area. It is evident that it was not intended to confer upon the comptroller judicial powers in making this apportionment ; otherwise the explicit direction contained in the statute would not have been given. In other statutes relating to the subject of apportionment the comptroller is authorized to apportion the same as might seem to him to be just and equitable. But such language is conspicuously absent from the act now under consideration. He is to apportion the assessment ratably between said lands, etc. In none of the statutes where the words “just and equitable” are used do we find the word “ratably.” The only ratio which is presented is the relative areas of the portions of the land which are to be exempted from assessment because used for cemetery purposes and those which are not to be exempted. We think, therefore, that the decision of the comptroller proceeded upon an erroneous basis, and that.his action should be annulled, and the proceedings sent back for further action, without costs.

All concur.


author: Parker, J.

text:
    Count Arthur Dillon, App’lt, v. Commercial Cable Company et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    1. Corporations —Promoters—Oomfen sation.
    A secret agreement between the directors and the promoters of a corporation, by which the latter are to receive a share of the profits before any dividends are paid, is invalid.
    2. Same.
    The voluntary surrender of the promoter’s right to receive preferred stock, without an arrangement for other stock or compensation, affords no basis for a decree that the company should turn over to them stock of a different character as an equivalent of that surrendered and canceled at their request and without reservation.
    Appeal from, a judgment dismissing the complaint.

      A. R. Dyett, for app’lt; Wm. G. Choate, for resp’t.
   Parker, J.

— The plaintiff and the defendants Mackay and Bennett in September, 1883, entered into an agreement which had for its ultimate design the creation of a corporation for the purpose of constructing a submarine telegraph cable, between the coasts of France, Great Britain, and America. By it Mackay agreed to contribute the sum of $3,000,000, Bennett $1,250,000, and the plaintiff the sum of $50,000, to be expended in furthering the object which the parties had in view. Pending the incorporation, the parties organized themselves into a committee to prosecute the work, with the agreement that as soon as' possible they should become the board of directors of the contemplated corporation. Preliminary work, of an important and comprehensive character, was at once undertaken by the committee, which was immediately supplemented by a submission to the committee of a formal article of association by the plaintiff, which provided for the formation of the Mackay-Bennett Cable Company, and among other things embraced a scheme for special compensation or profit to the promoters. The details of it are unimportant, as it was not adopted, Mr. Bennett suggesting, as appears from the minutes, that, although the scheme was a usual one in Europe, it was not in conformity with the laws of the state of New York, under which it was proposed to incorporate the company. December 12, 1883, the Commercial Cable Company was incorporated under the laws of this state, and on the 2d day of January, following the “committee” held a meeting in Paris, at which all of the members were present. The provisions of the charter of the company were approved, and certain resolutions were adopted looking to the transfer to the company of all the contracts, rights, and privileges which the committee had acquired from France, Great Britain, and the United States, upon the repayment of their cash advances, and compensation for their services as promoters. The steps taken on that day by the committee were supplemented at a meeting of the committee held on February 1st, resulting in the formulation of a definite proposition for submission to the Commercial Cable Company. Later, and on April 1, 1884, the first meeting of the board of directors of the cable company was held, at which the following resolution was adopted:

“ Resolved, That the proposition of the original organizers and promoters of this company to transfer to this company all of the contracts made by them relating to ocean cables, and 'all 'their rights and privileges granted in France, Great Britain, and the United States with reference to the same, in consideration of the repayment of their cash advances and interest, and of the creation and issue to them of 1,000 shares of the par value of $100 each, of the preferred stock of this company, such preferred stock to be entitled to receive, by way of a dividend, fifteen per cent, of the net annual earnings of this company, such.net earnings "to be set apart out ot the gross earnings for each year after the payment of all expenses, and after the deduction from the gross earnings of all sums necessary for the maintenance, reparation, and replacement of the cables and other lines owned by this company, and directly in connection therewith, and as a part of its ocean cable system, and after carrying to the sinking fund such sum as may be deemed prudent and necessary, and such dividend of fifteen per cent, of such net earnings to be paid before or at the time of the declarations and payment of any dividend upon the common stock of this company, be accepted by this company, subject, however, to this modification, viz., that only 800 shares of the said stock shall be paid to said "original promoters and their associates, and "that the remaining 200 shares shall be held in the treasury'Subject to the future action of this board, and that the said 800 shares of said stock shall be issued and delivered so soon as the requirements of the next following resolution are complied with.”

As the capital stock of the company had been fixed by its corticate of incorporation at $4,000,000, a resolution was adopted at the same meeting of the board of directors, directing the counsel of‘the company to take such action as should be decessary for the creation of the 1,000 shares of preferred stock provided for by the resolution. The provision for the issue of the stock "was the outcome of a plan which the committee contemplated at the outset, and which was suggested in the scheme submitted by the plaintiff to the committee shortly after the making of the first contract, to secure to themselVes compensation for their services as promoters. The failure to fully execute and abide by this plan to deliver 80(> shares of the preferred stock to the promoters furnishes" the occasion for this controversy, It so happened that the outcome of that which was done operated to deprive this plaintiff, and the other parties as well, from receiving any. portion of the preferred stock or its equivalent, so that for their services as promoters no compensation has been received. By this action the plaintiff seeks to securq the rights and benefits assured by the contract with the cable company. How it happens that, by the judgment under review, it is held that be has no rights against the corporation which he can enforce, will appear from a brief examination of the subsequent conduct of the promoters and the cable company. Immediately after the meeting of the directors above referred to, steps •were taken to accomplish an increase of the capital stock to $4,-100,000, by the addition of 1,000 preferred shares, but it was not completed until about the 10th of September, 1884. In the interim however, and on July 14th, the directors, by resolution, directed the officers of the company to execute 800 of the preferred shares under the company’s seal, and deliver the same to Mackay and Bennett and the plaintiff in accordance with the resolution of April 1st. Upon the transfer of the contracts mentioned in the resolution, the original stock of the company, being 40,000 shares of the par value of $4,000,000, was issued and delivered to Mackay, Bennett, and the plaintiff in payment of their cash advances and interest. The preferred stock, however, was never issued as directed by the resolution of July 14th. Instead, nearly two years thereafter, and on the 8th of May, 1886, the three promoters, Mackay, Bennett, and this plaintiff, united in the execution of a request to their counsel to prepare a resolution, to be agreed to and carried by the board of directors of the cable company, which should stipulate “that the existing preference shares, issued at the request and for the benefit of the said directors, shall be canceled.” June 14th, following, the directors of the cable company adopted a preamble and resolution founded upon this request. The preamble recited the original proposition of the promoters to receive the preferred stock, the action of the board of directors directing the increase of capital stock of the company, in order to comply with its agreement with the promoters, the formal agreement under the hands of the promoters to release the company from such issue, and the request that the company annul and cancel the same. The resolution was as follows:

“ Now, therefore, it is resolved that this company does accept such surrender of said stock, and of all claims of the aforesaid Messrs. Mackay, Bennett, and Dillon thereto, and does hereby revoke and cancel the authority heretofore given for the issuance thereof, and that the counsel of this company be requested to cause such proceedings to be taken as may be necessary for the purpose of reducing the capital of this company to the original amount of $4,000,000 of common stock, and that the authority to create any preferred stock be put at end.”

The plaintiff was at once informed of the action of the directors, a copy of the minutes reaching him on the 29th of the same month. Such proceedings were thereafter had as reduced the capital of the company to $4,000,000. In August following, the plaintiff sent his certificate of stock to the company, with direction that it be canceled and replaced by certificate of the new issue. This was done, and the new certificates were accepted by him on the 23d of October. This action was commenced in May, 1892, and prior thereto this plaintiff demanded of the cable company that it create 800 shares of preferred stock of the par value of $100 each and issue 266 shares thereof to him, or issue 12,000 shares of the capital stock of the company of the par value of $100 each to Mackay, Bennett, and himself, one-third thereof, or 4,000 shares to be issued to him, or that it pay him the value of 4,000 shares, together with all dividends declared thereon since the organization ■of the company.

The plaintiff’s position is, that while it is true he surrendered for •cancellation his preferred stock, he did not by so doing discharge or .affect the liability of the cable company to pay over to the promoters eight-tenths of fifteen per cent, of the annual profits of the company; that the agreement of the company was to secure to the promoters such a proportion of the annual net earnings, and the issue of preferred stock was seclected as a method by which that result could be legally accomplished, — the surrender of his stock being intended by him merely as a giving up of the method, and not as a surrender of his right to receive such aproportion of the annual profits of the company as he had contracted for. In other words, that the transaction was one of form, not of substance, the canceled stock being replaced by a secret understanding, which should secure to the promoters all the benefits and rights that the stock would have given had it been retained. The minutes of the directors and the records of the cable company show no such arrangement. If there was one, it was impossible for the stockholders to ascertain the fact by inspection Of the books and papers of the company or otherwise. Subsequent to the cancellation of the preferred stock, the capital was increased from $4,000,000 to $6,000,000, and later to $10,000,000. Each purchaser of the increased issue of stock had a right to assume that it was entitled to receive, by way of dividends, all the net earnings of the company, and not that the promoters had a secret right to eight-tenths of fifteen per cent, of the annual profits of the company. And if such an agreement existed between the promoters and the company, the court, had it the power to compel the company to create the stock for them, would not exercise it after the rights of third parties had intervened, by the purchase of the large amount of stock resulting from the increase of the capital from $4,000,000 to $10,000,000. To enforce such a secret arrangement would constitute a most dangerous precedent, for it would, in effect, recognize the right of a corporation to create stock without certificates, to pay dividends without stock, to increase the capital stock without obeying the formalities prescribed by statute, and create a class of stockholders not recognized by the stock books, and unknown to the stockholders of record. Such a scheme the courts will not tolerate.

Again, it seems to us that such an agreement between the company and the plaintiff has not been proved. The books of the company show no such arrangement or understanding, nor was there any writing to that effect executed. Plaintiff’s contention is, that he was induced to consent to the cancellation of the preferred stock by the promise of Mr. Mackay that he should lose nothing thereby, and that Maclcay’s promise was the promise of the company. There is evidence that such a promise was made, and we credit it; otherwise, it would be difficult to understand how the plaintiff could have been induced to surrender his preferred stock. But the question is, whether the promise was that of Mr. Mackay personally, or that of the com-pony ? It is conceded that Mackay was authorized to do what a board of directors might do, and the inquiry therefore is whether that which he did was a corporate act, done in pursuance of the authority conferred on him, or his personal act. An examination óf the letters, and of the conversations testified to, satisfies us that the promise was made by Mackay, and that the plaintiff so understood it. Mackay was the dominating spirit of the enterprise, and not only in the letters written to the plaintiff respecting the cancellation of the preferred stock was it referred to as Mr. Mackay’s wish, but in the oral testimony of the plaintiff, touching the conversations had between him and Jules de Castro, Mackay’s wishes, assurances, and guaranties were constantly referred to, but the cable company seems not to have been considered or discussed. The act of Mackay, therefore, purported to be a personal, not a corporate, act. We also agree with the learned referee, that.the act complained of was not fairly within the scope of authority which Mackay exercised, but that subject has been discussed at such length and so thoroughly by the referee that we refrain from its consideration.

So far we have said that the surrender and cancellation of the promoters’ stock was, so far as the cable company was concerned, the voluntary action of the promoters, for the company did not hold out any inducement, or even proffer a request, to bring about that result. And, further, that had the stock been surrendered by the plaintiff and the other promoters upon a secret agreement or understanding that, nevertheless, the promoters should receive eight-tenths of fifteen per cent, of the annual profits of the company, such an agreement would not be enforced, as the stock of the company has been purchased by third parties without notice of the secret arrangement.

This brings us to the Consideration of the other position taken by plaintiff, that if it should be held that he is not entitled to stand in front of the shareholders to the extent of his proportion of eight-tenths of fifteen per cent, of the annual profits, as originally provided for, he is entitled to have such a proportion of the stock issued to him as will equal in value 266 shares of the preferred stock, which he estimates to be 4,000 shares. The last demand is said to be not open to the objection that a purchaser of the shares for value will be in any wise injured, for their purchases have been made with full knowledge of the extent of the issue authorized. If it be assumed that this demand is free from the difficulties which deny to the plaintiff the right to receive the preferred stock prayed for, it is, nevertheless, confronted with objections equally effective. In the first place, there is no proof of an agreement to give the plaintiff a part of the common stock. If it be said that, while this is true, yet the company agreed to pay the promoters eight-tenths of fifteen per cent, of the annual net profits, for which the preferred stock was to be issued merely as a means of securing payment, and a court of equity should decree a substantial performance in the only way open to it, by directing a proportionate issue of the common stock, we answer that such was not the agreement as we understand it. The terms of transfer, as expressed in the, resolution of April 1st, were stated to be repayment to the promoters “of their cash, advances and interest, and of the creation and issue to them of 1,000 shares, of the par value of $100 each, of the preferred stock of this company, such preferred stock to be entitled to receive, by way of a dividend, fifteen per cent of the net earnings of this company.” There was no other agreement, then or afterwards, touching the compensation to be paid to the promoters. Specific performance of that contract might have been enforced, but the voluntary surrender of- the promoters’ right to receive that stock, without an arrangement for other stock or compensation, affords no basis for a decree that the company should turn over to the promoters stock of a different character as-an equivalent of that surrendered and canceled at their request, and without reservation.

A still further answer to plaintiff’s contention in such respect is, that there is no proof that there is any common stock unissued 'which might be distributed to him. The plaintiff was undoubtedly persuaded to so act as to injuriously affect his interests by the promises of Maclcay, and it may well be that he has an adequate remedy against him, but if the views expressed be sound he cannot obtain relief as'against the cable company.

The judgment should be affirmed, with costs.

All concur.


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

text:
    Sarah Gleeson, as Administratrix, etc., App'lt, v. John Brummer, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    Negligence — Contbibutoby.
    Proof of facts, from which either the conclusion’ of negligence or the absence of negligence may be with equal fairness, drawn, is not sufficient to make the question of contributory negligence one of fact.
    Appeal from a judgment, dismissing the complaint.

      Dudley B. Horton, for app’lt; H. W. S. Johnston, for resp’t.
   Parker, J.

— rWe agree that the plaintiff failed to show freedom from contributory negligence on the part of Gleeson, within the rule laid down in Hart v. Bridge Co., 84 N. Y. 62; Hah v. Smith, 78 id. 483; Warner v. Railroad Co., 44 id. 471; Reynolds v. Rail-road Co., 58 id. 248, aud Cordell v. Bailroad Co., 75 id. 330. Whether the rule of contributory negligence announced in those cases has since been overruled presents the real point of difference.

The presiding justice is of the opinion that this result was accomplished by the decisions in Tolman v. Railroad Co., 98 N. Y. 203, and Galvin v. Mayor, etc., 112 id. 228; 20 St. Rep. 569. It must be admitted that the expressions quoted from the opinion in itolman's Case are not in harmony with the rule of the previous decisions, but it should not be held by this court that by it the court of appeals intended to overthrow the then existing rule, and establish a radically different one, for two reasons: (1) Because the court was entirely familiar with the rule and the cases establishing it, and would have carefully considered and distinguished them, had its purpose been to accomplish a modification of the rule. This was not done, nor were the cases even referred to. (2) The course of the argument strongly indicates that the court had no such purpose. The plaintiff’s intestate was killed at a crossing on defendant’s road, and the trial court refused to non-suit on the ground that the' plaintiff’s evidence failed to show freedom from contributory negligence, A judgment recovered in favor of the plaintiff was affirmed at general term, and this judgment the court of appeals reversed, holding that the evidence was insufficient to make the question of contributory negligence one of fact. In view of the result, it is quite apparent that no change of rule was intended. The question of the desirability or propriety of a modification was not presented. It was not essential to the decision made that it should be passed upon or considered. What the court decided was that the plaintiff had not met the burden of proof resting upon her, to show such facts as would authorize a jury to find that her intestate was free from contributory negligence. This proposition the court attempted to, and did, establish. As a preliminary step in the argument by which that result was accomplished, the legal proposition for which the respondent contended was conceded most strongly in his favor, to the end that the strength of the argument should more fully appear. And discussing the evidence from that standpoint, the court reached the conclusion that the plaintiff should have been nonsuited because of her failure to prove such facts as would permit a jury to find absence of negligence on the part of the intestate. Galvin v. Mayor, etc., which is as favorable to the appellant’s contention as any case to be found in the books, presents no indications of an intent to change the rule of the cases we have cited. It neither discusses nor refers to them. The facts proved were discussed by the court, and the comment made that “ many well-grounded inferences are possible from the evidence.” After •suggesting and considering some of them, the court concluded that part of the argument as follows: “ The inferences we have

suggested were those which might reasonably have been deduced from the evidence by the jury, and we think it was error to take the case from them.”

My conclusion is that the rule of the cases first cited still obtains, and justifies the decision of the trial court. The judgment •should be affirmed.

O’Brien, J., concurs.

Van Brunt, P. J.

(dissenting). — This action was brought to recover damages alleged to have been sustained by reason of the death of the plaintiff’s intestate. The defendant was at the time of the said death the owner of the premises Ho. 7 Cornelia street, in the city of Hew York, which was occupied as a tenement house. On the 10th day of March, 1891, the deceased, the husband of the-plaintiff, visited said buiding, and upon coming down stairs, fell -and was killed. Evidence was given tending to show that some portion of the steps had been out of order for a considerbale length of time, and that they were so at the time of the happening of the accident. Of this condition of affairs the housekeeper of the premises was notified, but they were not repaired. There was evidence also, tending to show that the defendant, the landlord, was often at the house, being there almost every day collecting his rents. The only person who was a witness of the accident was just entering the house as the deceased was coming down stairs, and saw him fall headlong to the bottom, where he was picked up dead. There was no evidence as to how the deceased was descending the stairs, or what precautions he took in coming down. The witness who saw the accident testified that the deceased was about on the second step when he commenced to fall, and the evidence shows that the step which was more particularly out of repair at the head of the stairs was the third or fourth step. In considering this testimony, however, it is to be observed that the eyewitnesses evidently was not certain as to the exact location of the deceased upon the stairs when he commenced to fall, and the jury might have found as fact that his fall commenced at the defective step. At the conclusion of the plaintiff’s evidence the court dismissed the complaint upon the ground that there was no evidence that the want of repair of the step caused the fall of the deceased, and also that there was no evidence that he was free from contributory negligence.

In respect to the first proposition it seems to me that there was evidence from which the jury might have found that the stairs in question were out of order at the .time of the happening of the accident, and that as a result of such want of repair the deceased tripped and fell. It is impossible for the plaintiff, in a case of this description, to establish with absolute certainty the precise situation attending the happening of the accident. It is sufficient, however, if she places before the jury such a state of affairs that the jury would have a right to draw the inference that the accident was caused by the defective condition of the stairway, and it is clear from the evidence in the case at bar that if such defective condition existed, the jury may have been justified in finding it to have been the proximate cause of the fall.

. Upon the other ground upon which the complaint is dismissed, namely, that the plaintiff had not shown that the deceased was free from contributory negligence, it must be admitted that there is no proof establishing this proposition, and if the rule of law laid down in Hart v. Bridge Co., 84 N. Y. 62, is to be applied the ruling of the learned court below was entirely correct. In that case the court charged the jury as follows:

“It is not enough to prove facts from which either the conclusion of negligence or absence of negligence may be with equal fairness drawn, but the burden is upon the plaintiff to satisfy you that there was no contributory negligence on the part of the deceased.”

The court held that there was no error in this charge, and that, it was incumbent upon the plaintiff to satisfy the jury that there had been no contributory negligence by a preponderance of proof. And attention is called to the cases of Hale v. Smith, 78 N. Y. 483; Warner v. Railroad Co., 44 id. 471; Reynolds v. Railroad Co., 58 id. 248, Cordell v. Railroad Co., 75 id. 330, as establishing the doctrine announced. I think, however, that all these cases, upon this point, have been overruled by subsequent decision of the court of appeals. In Tolman v. Railroad Co. 98 17. Y. 203, an entirely different rule is laid down. In that case it is held sufficient to go-to the jury if the surrounding facts and circumstances reasonably indicate or tend to establish that the accident might have occurred without negligence of the deceased. The inference becomes possible, in addition to that which involves a careless or willful disregard of personal safety, and so a question of fact may arise to be solved by a jury and require a choice between possible but divergent inferences. In other words, upon an evenly balanced case, or where there is no evidence upon the subject of the happening of the accident, the jury have a right to find the affirmative fact that there has been no contributory negligence. The language of the court is :

“If the surrounding facts and circumstances reasonably indicate or tend to establish that the accident might have occurred without the negligence of the deceased, therefore the defendant must prove that the accident could'not have occurred without negligence upon the part of the deceased, in order to prevent an «affirmative inference establishing the want of contributory negligence; because in every case where the proof does not establish to the contrary, the accident may have occurred without the negligence of the plaintiff.”

This rule seems to have been reiterated in the case of Galvin v. Mayor, etc., 112 N. Y. 228; 20 St. Rep. 569, and as authority for the proposition announced in that case reference is had to the case of Johnson v. Railroad Co., 20 N. Y. 65. In that case there was no evidence as to how the accident happened, and the court say:

“In an action for personal injury from negligence of the defendant, the absence of any fault on the part of the plaintiff may be inferred from the circumstances, in connection with the ordinary habits, conduct, and motive of men, and that the character of the-defendant’s negligence may be such as prima facie to prove the whole issue."

The- court further say:

“The proof did not show affirmatively a want of care on the part of the deceased, and was quite consistent with the exercise of due care and caution in approaching the grating,” —a very different rule from that which is laid down in the case first cited. I think, therefore, that those cases have been distinctly overruled, and in the absence of any proof whatever upon the question of contributory negligence the jury may find that the plaintiff has established this affirmative issue in his favor, the only test being that such conclusion shall not be inconsistent with the facts proven, although it may have no evidence to support it. Applying this rule to the case at bar, there is no evidence whatever that the deceased did not use ordinary'precautions in coming down the stairs, and hence the jury may have inferred that he was free from contributory negligence;

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


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    William E. Wamsley, App’lt, v. H. L. Horton & Company, Limited, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    Pleading — Answer—Is abatement.
    A corporation cannot plead in abatement its dissolution pending an action against it.
    Appeal from an interlocutory judgment, overruling a demurrer to the answer.
    This action was begun January 9, 1893, by the personal service •of the summons and. complaint, to, recover damages for an alleged breach of contract. When the contract set out in the complaint was entered into, and when this action was begun, the. defendant was a corporation organized and existing under the. laws- of the United Kingdomtof Great Britain and Ireland, and engaged in business at the city of New York The • defendant appeared in the action and moved to set aside the service of the summons and complaint, which motion was denied. 68 Hun, 549 , 52 St.Rep. 767 ; 70 Hun, 598; 54 St. Rep. 935 ; 139 N. Y. 656 ; 54 St. Rep. 934. Subsequently the defendant demurred to the complaint, but its demurrer was. overruled. 77 Hun, 317; 59 St. Rep. 373. Thereafter the defendant answered, and later served an amended ■■answer. November 21, 1894, a paper called a second amended answer was served, setting out. four defenses, — the fourth being that the defendant was dissolved, at London, England, on or about May 23, 1893. This document, denominated the second amended answer, was verified November 20, 1894, by one of the firm of attorneys, who is the defendant’s attorney of record in the action. The plaintiff demurred to t.he fourth defense on the ground “ that it is insufficient in law, upon the face thereof.”

      Alexander S. Bacon, for app’lt; John R Dos Passos, for resp’t.
   Follett, J.

— A sole defendant, who has died during the pend-ency of an action, cannot by bis attorney plead his own death as a defense to the action. Nor can any defense be interposed by or in the name of a dead defendant. The fact that the defendant is a corporation does not alter the rule. In case a sole defendant •dies, all subsequent proceedings taken by thp plaintiff in the action, before the defendant’s representatives are brought in, are Void. A judgment entered upon such circumstances would be invalid. When it is shown that a sole defendant has died, it is usual to enter a suggestion of the fact on the record, which suspends all subsequent proceedings until the representative is brought in. It is very clear that a dead defendant cannot plead its death or any other fact as a defense. The authority of the attorney of record to act further in the case ceases upon the death of the client, and he can take no further steps in the action under .his original retainer. We are unable to see on what principle any of the defenses interposed by this second amended answer can be demurred to. This answer ought not to have been received by the plaintiff’s attorney, and, if filed with the clerk of the court, it should have been stricken out. A notice of motion to strike out such an answer may be served upon the person who assumed to serve and file it. The record before us is a strange one, and, we think, without precedent. We have a judgment asserting that a dead defendant has interposed a valid defense, and awarding it costs on the trial of an issue of law. We think the practice is without precedent, and without authority, and that neither the second amended answer nor any of the papers subsequently served or entered are valid, and they form no part of the record in this case, and that the second amended answer and all subsequent proceedings should be vacated and set aside,, with costs to either party.

All concur.


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    Frank Work et al., Resp’ts, v. Dudley Tibbits, Impleaded, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    Pledge — Costs of defending title.
    A pledgee, who acts solely tor his own behalf in defending an action brought by the owner of the pledged property to recover possession thereof from him, is entitled to no further re-embursement than the law generally affords to successful litigants, and cannot charge to the pledgor all the necessary expenses of the action.
    Appeal from a judgment, adjudging that plaintiffs have a lien on certain securities, pledged with them, for counsel fees and other expenses incurred in resisting several actions at law brought to recover a portion of the securities or the value thereof.

      Esek Cowen, for app’lt: Charles Fox, for resp’ts.
   Parker, J.

— This suit was brought to foreclose a lien on certain stocks pledged to the plaintiffs by Ogden, Calder & Co. There was found to be due the plaintiffs, under the contract of pledge, the sum of $32,930.07, which included $4,532.75, allowed for counsel fees and expenses incurred in certain litigations in relation to the stocks which were the subject of the pledge. The controversy on this appeal relates solely to the latter item. The defendant Tibbits, and not Ogden, Calder & Co., was the real owner of the stocks at the time the contract of pledge was entered into; and in pledging the stocks as they did to these plaintiffs they acted wrongfully, but of this fact these plaintiffs had no knowledge.

At the time of the commencement of this suit they were pending three actions against the plaintiffs, arising out of the transaction had by them with Ogden, Calder & Co., one of which was instituted by'Tibbits. In Tibbits’ action plaintiffs answered, setting up that they were bona fide holders for value of the stocks mentioned in the complaint, without notice of the title or interest of the said Tibbits, and such answer being interposed, the action was abandoned by the defendant Tibbits. It was in such actions that plaintiffs incurred the counsel fees and expenses which are in dispute. The pledgees were successful in that litigation because of superior equities, growing out of the fact that Tibbits so left his stocks with Ogden, Oalder & Oo. as to give the appearance of ownership, — an appearance that the pledgees had a right to rely on, and did. This’ act, coupled with, the wrongful doings of Ogden, Calder & Co., opened the way for the application of the equitable rule that where one of two innocent parties must suffer, the one whose neglect made possible the injury must hear the loss. The defendant Tibbits’ title, therefore, did not avail him, and the abandonment of his action to recover the stocks probably resulted in a judgment for costs, which ordinarily measures all that the successful party may have by way of indemnity for counsel fees and expenses incurred in establishing his position through a judicial determination.

But the plaintiffs claim that in this case they can take, out of the proceeds arising from the sale of the stock, of which Tibbits was the real.owner, not only the amount loaned by them and the taxable costs recovered against Tibbits, but all the counsel fees incured by them in establishing the priority of their equity over that of Tibbits. They have no precedent directly in point for it, but claim to be within the rule which permits a pledge to charge to the pledgor, and deduct from the fund realized by the sale of the thing pledged, all necessary expenses incurred in clearing or defending the pledgor’s title. A distinction between such a case and this at once forces itself upon the attention, and that is, that these plaintiffs have been allowed to deduct over $4,000 for expenses incurred, not in defending the pledgor’s title, for he bad none, but in defending the validity of the transfer to themselves. The plaintiffs’ pledgor did not have any title, and therefore they did not receive any from him. Nevertheless they defeated Tibbits because-he so acted as to put it in the power of his brokers to induce them to make a loan on the faith of the pledgor’s ownership of the stock. Such a defeat ordinarily carries against the defeated party, and in favor of the successful one, taxable costs, with perhaps an allowance. This seems to be no good reason why these plaintiffs should be more favored than the average suitor, nor why this defendant should be more severely punished for his neglect than the many who are called upon to respond to others in some manner for their carelessness." None has been suggested, certainly, and it is safe to assume that one would have been, had the thoughtful examination of counsel led to its discovery. In such case the courts should not strain the rule affecting the reimbursement of pledgees for the purpose of bringing the plaintiffs’ claim within it ; and unless that be done, plaintiffs’ claim for the expenses of their litigation must fall. The foundation rule is, that the pledgee, after sale,' must credit the pledgor with the net amount- realized by him from the proceeds of the pledge. If put to expense in order to protect the property pledged, compelled to pay an incumbrance to prevent foreclosure, or forced to defend the pledgor’s title, the gross proceeds must be reduced, to the extent of the expense incurred in the doing of one or all of these things, because done on behalf of the pledgor and for his benefit. The property passes to the pledgee, burdened with adverse claims against the pledgor, and but for the pledge the latter would be compelled to incur, in the first instance, the expense which devolves upon the pledgee by the contract of pledge. What is done by the pledgee in such case is, therefore, for the benefit of the pledgor, and justifies the rule of law that the pledgee, upon whom has been shifted the burden of maintaining or defending the property pledged, shall have reimbursement out of the proceeds, turning over to the pledgor only what sum shall thereafter remain. The decided cases to which our attention has been called, aside from those involving payment of incumbrances or expense incurred in preserving the property pledged, relate to expense incurred in vindicating the pledgor’s title. But in this case the pledgors did not have title to the stock pledged. In making the pledge they acted without right. What these plaintiffs attempted to accomplish was, not to establish that their pledgor had title, but that plaintiffs were purchasers in good faith from them while they were in possession and clothed with apparent owership, and therefore, as against the real owners, were entitled to so much of the proceeds as should be required to satisfy the pledge. The suits were therefore of no benefit to the pledgors, nor was the defense undertaken in such belief. Hence, there was no implied authority to defend in their behalf, and, in defending, the pledgees acted solely for their own benefit, and it would seem that they were entitled to no further reimbursement than the law generally affords to successful litigants.

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

All concur.


author: Follett, J

text:
    Nicola Colelli, Resp’t, v. New Jersey and Pennsylvania Concentrating Works, App’lt.

      (Supreme Court, General Term, First Department,

      Filed June 14, 1895.)

    Negligence — Proof—Happening oe accident.
    In an action to receive for personal injuries upon the ground that the defendant negligently designed an unsafe building, upon which it directed plaintiff to labor, the mere fact that the frame of the building, after most of it was erected, fell, was held, under the circumstances of the case, to be proof from which the jury was at liberty to infer that the plan was defective, unless it was shown to have been negligently executed.
    Appeal from, a judgment in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      Theodore B. Steele, for app’lt; John M. Gardiner, for resp’t.
   Follett, J

— This action was begun October 8, 1892, to recover damages for a personal injury sustained by the plaintiff, an employe of the defendant, occasioned by the alleged negligence of the defendant. The plaintiff is a stone mason, and April 7, 1892, began work for the desendant, a New Jersey corporation, and continued in its employ until August 12, 1892, when he was injured. The ease does not contain all of the evidence, and, ■ therefore, no- question of fact is before the court for its consideration. June 30, 1892, the defendant entered into a contract with Owen J. Conley, by which the latter agreed to erect; pursuant to plans furnished by the defendant, a frame building, about 230 feet long, 90 feet wide, and upwards of fifty feet high, upon its property at Ogden, N. J., and known as “ Stockhouse No. 3.” The defendant furnished the material for the building and the machinery and implements for erecting it When completed, it was to consist of twenty-three bents set ten feet apart. When the bents were'ready to be raised, the contractor applied to the defendant for a gang of men to assist in raising the building. The plaintiff was at work under a foreman by the name of Smith, who-was directed by the defendant’s officers to assist the contractor in the erection of the building. In obedience to Smith’s direction, the plaintiff, with others, worked on the building. On August 12, 1892, while the seventeenth bent was being raised, all the " bents fell to the ground, severely -injuring the plaintiff, w-ho was at the' time engaged on the building as an employe of the defendant. There was no wind or apparent external cause for the accident, but the building fell either because defectively designed or because the design, was defectively executed. The defendant’s mechanical engineer planned the building, and it is not asserted that the contractor who undertook to perform the -mechanical labor, but not to furnish any materials or machinery, neglected to erect or stay the bents in accordance with the plans furnished. There was some evidence that the -bents fell because the contract- or’s employes negligently left a rope unfastened; but the court instructed the jury that the -negligence of the contractor or of his employes furnished no ground for the recovery of -damages by the plaintiff, and that, to entitle him to recover, the jury must find that the accident was caused by a defective plan or design ' negligently adopted.

The mere fact that seventeen bents, forming a frame 170 feet long, 90 feet wide, and 50 feet high, fell under the circumstances described, was evidence from which the jury was at liberty to infer that the plan was defective, unless it were shown to have been negligently executed. Builders testified that sufficient stays for holding the bents in position after they were erected were not prescribed by the plans, and in this respect it was urged that the defendant was negligent. On the part of the defendant, witnesses testified that the plan was a safe one; hut, in the face of the result, it is not a matter of surprise that the jury found that it was not. The plaintiff did not recover upon the theory that the contractor or his employes were negligent, but upon the ground that defendant negligently designed an unsafe building, upon which it directed the plaintiff to labor. It is not argued that the court erred in the reception or rejection of evidence, and the exceptions to the charge present no error, and are not of sufficient importance to require discussion. The liability of the defendant to its employes injured by this accident has already been affirmed in this court. Rook v. N. J. Concentrating Works, 76 Hun, 54; 59 St. Rep. 610, -and also by the supreme court of New Jersey in two cases.

The judgment and order should be affirmed, with costs.

Parker, J., concurs ; Van Brunt, P. J., concurs in result.