author: Bradley, J.

text:
    William W. Goodall, App’lt, v. New York Central and Hudson River Railroad Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Negligence—Contributory.
    A person, whose duty requires him to stand upon a railroad track, is negligent if he remains there longer than necessary,
    2, Same—Lessor op track.
    The lessor of a railroad track is not required to use its adjacent tracks so as to avoid imperiling the lessee’s employes, who may have occasion, in the performance of their duties, to go on such adjacent tracks.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      W. K Willey, for pl’flE; Charles A. Pooley, for def’t
   Bradley, J.

The plaintiff was in the service of the Grand Trunk Railway Company in the defendant’s switch yard in the city of Niagara Falls. A track in the yard was used exclusively by the Grand Trunk Company for making up its trains, onto which track, for that purpose, cars were switched by the engines •of the defendant, and the trains thus made up on that track were drawn out and across the river by the engines of the Grand Trunk Company ; but, before taking the trains out of the yard, notes of the seals, numbers and initials of the cars were taken. It was the business of the plaintiff to do this. He was termed the “ car checker,” and a card was put on each car by another man who accompanied him, in the service. On March 22, 1894, while engaged in doing this, the plaintiff was struck by an engine of the defendant, and injured. The direction of the track is east and west. On the occasion in question, the plaintiff commenced on "the north side, at the west end of the train (no engine being then attached to it), and proceeded east to that end of it, checking as he went; then went back on the south side. When he approached the west end, he observed that an engine and two cars had been attached to the train at that end. He took a note of the numbers and initials of those cars on the south side, and passed around the engine to the north side. He observed the seals, and moved back north to look at the numbers and initials of the cars, and in doing so he stepped upon another track, where he was struck by a switch engine moving westerly. It is very likely that he was not observed by the engineer. His evidence is that he did not hear the ■engine as it approached. There is evidence tending to prove that it was the custom in the yard to ring the bells of the engines w hen they proceeded to move in any direction; that none was rung on this occasion upon the engine which struck the plaintiff; and that the engineer was not looking in the direction his engine was moving. The evidence was therefore sufficient to impute negligence to the engineer of the defendant. The plaintiff was nonsuited upon the ground that it did not appear that the accident was not attributable to his contributory negligence. The distance between the track occupied by the Grand Trunk train and the track north of it was seven and one-half feet. The projection of that train was two feel. The evidence of the plaintiff is to the effect that he was required to step back from the train to get the numbers and initial letters on the cars, and that before he did so he looked oast, and saw the engine standing at a place 366 feet from where he was. The man with the plaintiff, when he went around to the north side of the train at the west end, started to go to the shanty after cards to put on those two cars. The shanty was some distance easterly, and, when he had gone about 180 feet, he met the engine going west, which was moving slowly. He then saw the perilous position in which the plaintiff was unless his attention was called to the approaching engine, and hallooed, with no apparent effect upon either the engineer or the plaintiff. The view •of the learned trial justice was that the plaintiff was negligent in remaining so long as he did in the place which .turned out to be one of danger. The time he occupied in taking note of the numbers and initials of those two cars appears to have been longer than was necessary. He was on the north side of the train for that purpose when his associate, the “ carder,” left him; ahd when his associate had walked more than ten rods, and the engine had thereafter moved the like distance, the plaintiff was still in the place to receive his injury.

If the performance of his duties required the plaintiff to step •upon the track north of the train, his doing so did not charge him with negligence if there was then no apparent danger to be apprehended. But the track was not a place for him to remain after he had accomplished what his position there fairly required of him. He knew that this as well as other tracks in the yard was subject to use by moving engines, and that it was for him to keep out of the way. He would not be justified in listlessly standing on the track. After he saw the engine standing 366 feet away, he gave it no further attention. The question might well be asked, why did he occupy so much time to ascertain what were the numbers and initial letters indicating the ownership of the two cars? His record had been made of them in that respect from the south side •of the train, and ins view on the north side was taken to see that his check as made was correct, and without further entry. The plaintiff says that he was in the act of taking the numbers and initials of the cars when he was struck. As1 he made no entry of them, his observation of the numbers and initials of those two cars required but a brief space of time; and, in view of the uncontradicted evidence, the conclusion is fairly required that the plaintiff must have delayed stepping back or in taking the numbers and initials without looking easterly immediately before doing so, else he would have seen the approaching engine, which came 180 feet from the place where it was met by his comrade, who had in the meantime walked that distance from the plaintiff. In like manner is indicated the length of time intervening that when he saw the engine 366 feet away and the time of the accident.

The learned counsel for the plaintiff urges with much force that the question of contributory negligence was on the evidence one of fact for the jury, and he citeg many cases on the subject. Those more especially relied upon by him are cases where the defendants owed some duty to the persons injured by reason of the situation in which they properly were in relation to the railroads or the tracks at the time the injuries were- received. Such were Noonan v. Railroad Co. (Sup.) 16 N. Y. Supp. 680; Barton v. Railroad Co., 1 Thomp. & C. 297; Murphy v. Railroad Co., 118 N. Y. 527; 29 St. Rep. 941; Sullivan v. Railroad Co., 44 Hun, 304; 7 St. Rep. 627 ; Dempsey v. Railroad Co., 81 Hun, 156; 62 St. Rep. 686; Newson v. Railroad Co., 29 N. Y. 383; Goodfellow v. Railroad Co., 106 Mass. 461. They are distinguishable from the present case in the fact that in the latter, so far as appears, the defendant was not required to assume that, in the inspection or examination of the cars in the train upon the Grand Trunk track, any use would be made of the adjacent track of the defendant, or that there was any occasion to do so. It was therefore rather the duty of the plaintiff to keep out of the way of engines moving upon the latter track than the duty of the defendant to move them upon it in expectation that to do so might be perilous to the Grand Trunk employes in the situation required by the service in which they were engaged. ■ The plaintiff, therefore, was not permitted to rely for his safety upon being warned by the defendant of the approach of its engine on the tracks at the place where he received his injury. The evidence does not fairly permit the conclusion that the plaintiff used the reasonable care required of him under the circumstances. Young v. Railroad Co., 107 N. Y. 500; 12 St. Rep. 285 ; Cullen v. Railroad Co., 113 N. Y. 667; 23 St. Rep. 719.

The motion for a new trial should be denied.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    Thomas Smith, App’lt, v. Margaret W. Slosson, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Pleading—Answer—Statute of frauds.
    Where a contract is void by the statute of frauds because not in writing and, by its terms, not to be performed within one year from the time it was made, the statute, 'to be available as a defense, must be pleaded.

      2. Same—Tender.
    Where the answer is received and retained without raising the objection that the defendant has not paid into court the money which the answer alleges to have been tendered to plaintiff, the latter may be deemed to have taken issue upon the plea of tender and waived the irregularity.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.
    The plaintiff, by his complaint, alleges that on or about the 26th day of March, 1894, he made with the defendant an agreement to perform services (there mentioned) for her “ for and during the period of one year from, and including, said date,” for the compensation of $22 per month and board; that he en: tered upon the performance of the contract, and continued in the service of the defendant until or or about October 31, 1894, when the defendant refused to permit him to proceed further with the performance of the contract, although he was, and has since been, ready to do so; that the defendant paid him a portion only of the compensation for services performed, and that the plaintiff sustained damages by reason of the breach of the agreement. The defendant, bjr her answer, admits that on or about the 29th day of March, 1894, she made with the plaintiff a contract for his services, but denies that, by the terms of the contract, were as stated in the complaint. And she alleges that by the terms of the contract, she employed the plaintiff to render services so long only as she choose to employ him; that the plaintiff failed to satisfactorily perform the services for which he was employed ; and that on or about the 29th day of October, 1894, she discharged him from her service. And she further alleges that she then tendered to the plaintiff $67 in payment of the balance due him upon the contract; that he refused to receive it, and “ that the defendant has ever since been ready and willing to pay to the plaintiff said sum, but the plaintiff has hitherto refused to receive the same; that the defendant now brings said sum of sixty-seven dollars into court, ready to be paid to plaintiff, if he will accept the same.” The plaintiff was nonsuited at the trial.
    TP?ra. S. Moore, for pl’ff; Charles A. Hawley, for def’t.
   Bradley, J.

The alleged agreement was not in writing, and the evidence on the part of the plaintiff to prove it was to the effect that on or about the 26th day of March, 1894, the agreement was made for one year’s service, to commence on or about April 1st, when he should be requested by the defendant to do so; that, pursuant to her request afterwards made, he entered upon the performance of the contract on the 29th day of March, 1894. There was a conflict in the evidence of the parties relating to the terms of the contract, and as to the manner of the performance of the service by the plaintiff. The nonsuit of the plaintiff was directed upon the ground that the contract was void by the statute of frauds, as it was not in writing, and, by its terms, not to be performed within one year from the time it was made. This was not alleged as a defense. There has been some conflict in authority on the subject, but the doctrine of the later cases is that it must be pleaded, to render the statute of frauds available as a defense. Hamer v. Sidway, 124 N. Y. 539 ; 36 St. Rep. 888; Wells v. Monihan, 129 N. Y. 161; 41 St. Rep. 409; Crane v. Powell, 139 N. Y. 379 ; 54 St. Rep. 659; affirming 46 St. Rep. 668; Barrett v. Johnson, 77 Hun, 527 ; Banntyne v. Mining Co., id. 289; 59 St. Rep. 753.

It is urged by the learned counsel for the defendant that the plaintiff failed to prove the contract alleged in the complaint, and for that reason the direction of the nonsuit was supported by the denial alleged in the answer, inasmuch as the contract proved was within the statute. The variance thus referred to is in the fact that the plaintiff did not allege in the complaint a contract which, by its terms, was not to be performed within one year. The counsel cites several of the earlier cases, in which this question did not arise, but where it was said, obiter, that, if the agreement were denied, it was incumbent upon the plaintiff to establish a contract valid within the statute, by evidence competent to prove it. The distinction urged to the effect that the denial by answer of the making of the alleged contract is effectual when, as alleged in the complaint, it does not appear that it would be void if not in writing, although otherwise it would be necessary to plead the statute, is not observed by the cases cited. In those cases in which it was said that the denial would put the plaintiff to the necessity of giving such evidence as would establish an agreement having the formality required by the statute to render it valid, the contracts, as alleged, were invalid, within the statute of frauds, unless in writing. Cozine v. Graham, 2 Paige, 177; Bank v. Root, 3 id. 478; Marston v. Swett, 66 N. Y. 206. Nor is such distinction, observed in any of the cases to which our attention has been called. It- is suggested that it'was in the mind of the court in Crane v. Powell, but nothing appears in that case to require such conclusion. It was not deemed essential, in the common pleas, to make specific reference to the complaint (19 N. Y. Supp. 220), nor was it in the report of the case on the review which followed. If-the complaint had alleged that the contract was for service of the plaintiff to be performed for one year from a day subsequent to that on which the contract was made, the import of the pleading that the contract was valid would have been no less than was the implication in that respect furnished by the allegations, as made in the complaint, of the terms of the contract in question. In either case, for the purposes of the pleading, it would be assumed that the alleged contract was made in such manner as to render it valid. Marston v. Swett, 66 N. Y. 206. There is, in the present case, no variance between the plaintiff’s pleading and proofs, of the character to mislead the defendant to her prejudice, within the meaning of the rule applicable to the subject. Code Civ. Proa § 539. The plaintiff, by his complaint, alleged a contract for one year’s service. The defendant was advised by the complaint that he claimed damages for an alleged breach of such a contract. His evidence tended to prove that there was an unwritten contract to that effect, and that he was not permitted to complete the performance of it. It must be assumed that the defendant knew that there was no written memorandum of the agreement between them, and that she knew as well as the plaintiff whether or not he, by the terms of the contract (whatever it may have been), was to enter upon its performance on the day it was made. And, if not, she could have alleged that fact and there was no difficulty in pleading the statute to the effect that there was no memorandum thereof in writing to support an agreement by its terms not to be performed within one year from the making thereof. It may be observed that no general denial is alleged in the answer. The defendant there admits that on or about the 29th day of March, 1894, she made a contract with the plaintiff for the performance of services by him, but denies that the contract was as stated in the complaint. The controversy, as alleged by the parties, in respect to the terms of the contract, had relation only to the stipulated period of time for performance. And the time when it appeared that the plaintiff commenced performance of the services corresponds substantially with the time when the defendant admits the contract alleged by her was made. The view here taken is that, by reason of the omission of the defendant to plead the statute of frauds, the court erred in directing the nonsuit.

The plaintiff’s counsel urges, as a further reason why the non-suit should not have been directed, that the tender was ineffectual as a defense, because the amount was not paid into court. It is true that, when a tender is made before action commenced, it may be treated as a nullity, unless the money is paid into court, and notice to that effect is given with the answer alleging the tender as a defense. But that is a matter of practice, and, if the answer is received and retained without raising the objection to the omission, the plaintiff may be deemed to have taken issue upon the plea of tender, and waived the irregularity. Sheriden v. Smith, 2 Hill, 538; Wilson v. Doran, 110 N. Y. 101; 16 St. Rep. 852. And if any objection to the alleged tender, or its effect as such, was available to the plaintiff at the trial, none was raised thereby him. Becker v. Boon, 61 N. Y. 317. For these reasons, no question in relation to the tender is necessarily here for consideration.

The motion for a new trial should be granted, costs to abide the event. All concur.


text:
    Angela Moosbrugger, Resp’t, v. Anna Walsh et al., App’lts.

      (Supreme Court, General Term, Fifth Department.

      Filed October 16, 1895.)

    1. Corporations—Stockholders—Liability.
    Though, the corporation is dissolved before the assignment of a claim against it, the assignee is a creditor of the company, within the meaning of section 7, chap. 567 of 1890.
    2. Same—Certificate of payment of stock.
    A certificate that the whole of the capital stock has been sold and all but $-paid in, is a compliance with section 22, chap. 40 of 1848.
    3. Same—Fraud—Defense.
    The defense that the stockholders were induced by fraud to subscribe for and take the stock of the company, is not available as against its creditors in actions by them.
    4. Same—Exhausting remedy against company.
    Where the creditor has been prevented by injunction, followed by dissolution of the corporation, from so doing he is relieved from the statutory requirement of prosecuting the claim to judgment and execution against the company.
    5. Appeal—First instance.
    Where the question of the validity of the certificate that the whole of the capital stock of a corporation has been paid in, is raised on the trial of an action by a corporate creditor against the stockholders, but no objection is taken to the want of proof that it has not been filed in the office of the secretary of state, such objection cannot be effectually taken for the first time on appeal.

      Appeal from a judgment entered in favor of plaintiff.

      M. J. Sunderlin, for app’lts ; J. 0. Sebringt for resp’t.
   Bradley, J.

The action is founded upon the alleged fact that the plaintiff was a creditor of the Pleasant Valley Vintage Company, and that defendants, as its stockholders, were liable to her as such creditor because the whole amount of the capital stock had not been paid in and certificate thereof filed. The referee found that the company was duly incorporated in July, 1891, pursuant to Laws 1890, chap. 567, with a capital stock of $12,000; that in March, 1892, the capital stock was increased to $35,000; that the company continued business from the time of its incorporation until September, 1892, when proceedings were commenced for its voluntary dissolution, which was accomplished by final order in January, 1893; that neither the original nor increased stock was fully paid, nor any certificate thereof filed; that on March 14, 1892, the defendants subscribed for two shares of the stock, of $100 each; that on April 4, 1892, their names were entered in the stock book of the company as stockholders; that Edward H, Newman, by his promissory note then made and delivered to the company, promised to pay to the order of Bf. B. Longwell, secretary of the company, $240, with interest, on or before October 1, 1892; that on May 13, 1892; D. J. Sunderlin, by his promissory note made and delivered to it, promised to pay to the order of the company $100, on or before November 1,1892; that both of those notes, before maturity, were indorsed by the company, and transferred for value to George W. Hallock; that when they became due the notes were presented for payment, which was refused, and notice of protest for nonpayment duly given to the company, which was charged with liability as such indorser; that on February 21, 1893, Hallock assigned to the plaintiff his claims and causes of action against the defendants by reason of such notes, and arising out of the liability of the company as such indorser; and that this action was commenced February 23, 1893. The facts thus found have the support of evidence.

The statute provides that the stockholders “of the corporation shall be, severally, individually liable to its creditors for all debts and contracts made by the corporation until the whole amount of its capital stock has been paid in, and until a certificate thereof has been filed.” Laws 1890, chap. 567, § 7. Inasmuch as the corporation was dissolved before the plaintiff became assignee of the claims in question, it is urged that she is not a creditor of the company, within the meaning of the statute. Hallock became a creditor of the company upon the indorsement and transfer by it of the notes to him, although the liability of the company was then contingent. Van Wyck v. Seward, 18 Wend. 375. This liability became absolute in October and November, 1892. The dissolution was perfected in January, 1893. By the transfer after-wards made to the plaintiff by Hallock, who was a creditor of the company, she took the relation he had as such, and in legal contemplation was a creditor of the corporation. Code Civ. Proc. §§ 1909, 1910. The defendants must be deemed subscribers to the increased capital stock, and their alleged liability is dependent upon their relation as stockholders resulting from such subscription.

It is insisted that, in the proceedings to increase the capital, the provisions of the statute were not observed, and therefore there was no valid increase of the capital to support the alleged relation of the defendants as stockholders. In the method of proceeding to increase the capital of a corporation, prescribed by the statute, is the provision that a certificate be made showing, among other things, “the amount of capital actually paid in.” Laws 1848, chap. 40, § 22. It is suggested that the certificate in the present case was defective in that respect, in the statement that “the whole of the said capital stock of $12,000 has been sold, and all but $- paid in.” The import of this is that the entire amount of the capital had been paid in. The certificate in that respect is in compliance with the statute.

It is true that the filing of the certificate.is requisite to the increase of the capital. Id. It appears that, on March 17, 1892, the certificate was filed in the office of the clerk of Steuben county, where the business of the company was conducted. Although the question of the validity of the certificate was raised on the trial, no objection appears to have been there taken to the want of proof that it had not been filed in the office of the secretary of state. That question requires no consideration, as the objection cannot be effectually taken for the first time on this review. If it had been made at the trial, it may be that the fact would have been supplied by evidence. It must here be assumed, upon the facts as they appear, that the capital stock was increased pursuant to the statute, and that the defendants became stockholders of such increased capital.

It may be that, notwithstanding the original capital stock had not been fully paid in, and a certificate thereof filed, the liability of the defendants as such stockholders is confined to the debts of the company incurred since such increase of capital was accomplished. Veeder v. Mudgett, 95 N. Y. 295; Griffeth v. Green, 129 id. 517; 42 St. Rep. 101. But that question does not arise in the. present case. The notes of Newman and Sunderlin were made, and the liability of the company as indorser was incurred, after the increase of capital stock. The assumption of the defendants’ counsel to the contrary is not supported by the record.

The evidence offered on the part of the defendants to prove that they were induced by fraud to subscribe for and take the stock of the company was properly excluded. Their remedy on that ground was for relief by way of rescission, and against the company, or some party representing it, as succeeding to its rights and remedies. Such defense is not available as against its creditors in actions by them. McDermott v. Harrison, (Sup.) 30 St. Rep. 324; Bostey v. Machine Co., 123 N. Y. 550; 34 St. Rep. 277.

The only relation of Hallock to the corporation was that of its creditor, and the plaintiff succeeded to his rights and relation as such. He and his successor in interest cannot legally be prejudiced by the transaction between the company or its representative and the defendants, which led to the subscription to the stock and a taking of a certificate therefor by the latter.

The creditor, having been prevented by injunction, followed by dissolution of the corporation, from so doing, was relieved from the statutory requirement of prosecuting the claim to judgment and execution against the company, which otherwise would have-been a condition precedent to the action against the defendants, Kincaid v. Dwindle, 59 N. Y. 548.

The judgment should be affirmed.

All concur.


text:
    Hannah Smith, as Administratrix, etc., Resp’t, v. Empire Transportation Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Master and servant—Fellow.
    The second mate, acting as the foreman of a gang working on a vessel, is their fellow-servant, where they remove the support of a piece of flooring, which in consequence falls on one of the workmen.
    2. Same—Risk.
    Where the management, in process of the performance of the work, necessarily rests in the care, discretion and judgment of those engaged in the service, or of their foreman, the consequences to the workmen are-within the hazards incident to the service, and which are assumed by them when they enter into it.
    3. Same—Safe place.
    The fact that the place where services are performed may become unsafe in the process of the work, and resulting from the manner in which it is done by coemployes, furnishes no ground to charge the master with liability for physical injuries occasioned by the unsafe condition thus produced.
    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.

      John (7. Milhurn, for app’lt; Maclcey & Draper, for resp’t.
   Bradley, J.

The plaintiff’s intestate, while in the service of the defendant, in March, 1894, received an injury resulting in his death. He and others were engaged in the hold of the defendant’s steam propeller in the port of Buffalo. The purpose of the work was to relay the wooden floor, which at the close of the season of 1893 had been taken up, and. in sections, placed against the stanchions, extending from the keelson to the main deck in line along the center and the whole length of the midships —100 feet. The distance between the stanchions was a little less than four feet, except at the hatch, where two of them were separated by the distance of eleven feet and seven inches at the floor, and so inclined that at the deck they were seven feet and seven inches apart. The wooden flooring was in thickness a little more than two inches,, made of oak and pine lumber, and was in sections eight feet in length and five and eight-twelfths feet in width. When laid, the)r made three courses on each side of the line of stanchions. As they were placed standing when taken up, all the sections had the-direct support of the stanchions, except those sections which were at or under the hatch, where the distance between the stanchions was greater than the length of the sections. There they were placed against the ends of the others, which overlapped the stanchions on each side of this wide opening. The workmen had scraped and painted the iron surface of the water tank to be covered by the floor on the starboard side, except a space along near the stanchions, which had been occupied by the sections standing there. They had put down the two other courses of the floor sections, and laid upon them the sections to constitute the course adjacent to the stanchions on that side. The plaintiff was engaged in painting the uncovered portion of the iron tank under the hatch on the starboard side, when a section of the floor standing on the port side of the line of stanchions fell upon him, producing the injury in question. Some of the workmen were then engaged in removing the sections standing on the port side of the line of stanchions, and laying them in the floor on that side, and it was-on the removal of one of them that the section fell on the plaintiff. As the one that fell had only the support of the overlap of others resting against the stanchions, the fall of it was evidently directly attributable to the removal of one or more of the sections standing on the port side. The evidence of the only witness who gave any description of the occurrence was that, after they got through on the starboard side, they went over to the port side. “ There were-some sections standing up under the hatch, and these sections were lapped so as to hold them secure. After we had taken five or six —something like that—down, and laid them on the port side, we took hold of another one that was standing there, and put it in its place, and somehow or another this section fell over upon Smith.”'

The only question requiring consideration is whether there is any support in the evidence for the charge of negligence on the part of the defendant. When the decedent went to work for the defendant he assumed the ordinary hazards incident to the service, which included the consequences of the negligence of his co-employes. The second mate, who was foreman of this work in which they were engaged, was the co-employe of the other workmen. Mahoney v. Oil Co., 76 Hun, 579; 58 St. Rep. 279, and cases there cited. The trial court so held, but submitted to the jury the question whether or not the defendant was chargeable with negligence for not furnishing a safe place for the decedent to do the work which be was employed to perform. The duty of the defendant was to use reasonable care to that end, and, if it appears that the injury was attributable to the failure of the defendant to do so, the charge of its negligence is supported. When the decedent-went into the defendant’s service in the hold of the steamer the sections of the wooden flooring were standing on either side of the line of the stanchions. The place appeared to be, and in the then situation was, entirely sofa The safety under the hatch on the starboard side near the line of the stanchions may have been reduced by the removal of the standing sections from that side. But the opposite section on the port side, which afterwards fell, was not dependent upon them for support. It remained standing after they were removed. The disturbance which caused the section to fall was occasioned by the removal of one or more of the sections on the port side, which in some manner contributed to support and sustain it in its position. This was the act of the workmen, and if the fall of the section was the result of want of their due care, or of that of either of them, the negligence was that of the co-employe of the decedent, for which the defendant is not responsible to the plaintiff. This was the view of the trial court, and the jury were instructed that if they found that the workmen used such care, and that the section fell by reason of the manner in which it was placed there, the question whether it was negligence on the part of the defendant to leave it where and as it was placed was for the jury to determine, and, if they found that fact in the affirmative, the plaintiff was entitled to recover, unless the negligence of her intestate contributed to the injury sustained by him. It is quite difficult to see in the evidence any support for the proposition that the defendant was chargeable with negligence for want of safety in the hold of the steamer where the decedent was engaged in the work which he was employed to perform. The flooring was taken up, and, in sections, placed lengthwise along the line of stanchions, as it' usually had been at the close of the season of navigation, to permit it to dry out, and to enable the defendant to clean and paint the iron surface beneath it preparatory to fitting the vessel for use the coming season. The manner in which the sections were placed on either side of the stanchions, and the support those located under the hatch had to maintain them in position, were apparent to the workmen who were engaged in removing them and placing them in the floor. They could not, with the exercise of any reasonable care, fail to observe that in the space under the hatch the sections were dependent for support upon the overlap of the adjacent ones, which rested against the stanchions; and i't is evident that the disturbance or removal of that support by the workmen in the service 'caused one of them to drop from its inclined standing position. The unlocking of the safety in condition as it existed when the decedent went into the service arose from the manner the work in its detail was performed by the co-employes of the plaintiff’s intestate. These is no question about the competency of the workmen and sufficiency in number to do the work. The manner of doing it was intrusted to them. The management, in process of the performance of the work, necessarily rested in the care, discretion and judgment of those engaged in the service, or of their foreman. The removal of the support of the section in its place, and its fall, with the unfortunate result, were caused by the manner in which the workmen conducted the work in which they were engaged. This is eviident from the fact that it was supported on the port side of the line of stanchions after the sections were removed from the starboard side, and it could be thus supported only by the overlap of the sections standing against the stanchions. And, so far as appears by the f-acts derivable from the evidence, the consequences to the decedent were within the hazards incident to the service, and which were assumed by him when he entered into it. Cullen v. Norton, 126 N. Y. 1; 36 St. Rep. 359; Hudson v. Steamship Co., 110 N. Y. 625; 16 St. Rep. 416; McCampbell v. Steamship Co, 144 N. Y. 552; 64 St. Rep. 246. The fact that the place where services are performed may become unsafe in the process ■of the work, and resulting from the manner it is done by co-employes, furnishes no ground to charge the master with liability for physical injuries occasioned by the unsafe condition thus produced. Loughlin v. State, 105 N. Y. 159; 6 St. Rep. 826; Cregan v. Marston, 126 N. Y. 568; 38 St. Rep. 428.

So far as we are advised by the evidence, the danger of accident was not within reasonable apprehension as the flooring stood when the work was commenced, and the accident which followed could ■not occur otherwise than in the process of the work of removal of the means of support furnished by some of the sections to others beneath the hatch. Until this was done by the workmen, there was no want of a reasonable degree of safety. The evidence does not show any existing condition inherently dangerous in the •combination of the sections of the flooring, or a condition from which danger in the course of work could reasonably be apprehended from the exercise of reasonable care in the removal of those sections from the positions in which they were to the places designed for them to constitute the floor of the hold of the vessel. The proposition, therefore, upon which a master may be chargeable to his employe, by reason of his failure to furnish him a safe place to work, does not seem applicable to the present case as presented by the evidence.

In the cases to which our attention is called by the plaintiff’s counsel the unsafe conditions were not produced by the performance of the work in which the employes were engaged. In McGovern v. Railroad Co., 123 N. Y. 280; 33 St. Rep. 416, the defendant failed to use the care required of it to see that the place where the servant was put to work in the elevator was then safe, when in fact it was otherwise. The same may, be said of Stuber v. McEntee, 142 N. Y. 200; 58 St. Rep. 455, where the plaintiff’s intestate was employed to work in a trench, which was in an unsafe condition for the service. Similar in its nature was Kranz v. Railway Co., 123 N. Y. 1; 33 St. Rep. 46. And for a like reason recovery against the defendant was supported in Pantzar v. Mining Co., 99 N. Y. 368. It there appeared that the place where the plaintiff was at work for the defendant in the mine of the latter was rendered unsafe by an insecure mass of rock in an overhanging cliff, by the fall of which he was injured.

The conclusion is that the verdict is not supported by the evidence.

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

All concur.


author: Lewis, 3.

text:
    Richard E. Townsend, Resp’t, v. Edward G. Felthousen, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    Appeal—Harmless error.
    The admission of incompetent evidence on an erroneous theory is not prejudicial, where it is competent on some other ground.
    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.

      Adelbert Moot, for app’lt; Norris Morey, for resp’t.
   Lewis, 3.

The plaintiff, in the month of January, 1891, purchased of the defendant 625 shares of the capital stock of a manufacturing corporation, known as the “ Buffalo Steam Pump Company.” The stock was of the par value of $100 a share. The plaintiff paid the defendant for the 625 shares the sum of $37,500, being at the rate of $60 a share. This action was brought to recover damages which the plaintiff claimed he had sustained by reason of his having been induced to purchase the stock by certain fraudulent representations, which ho claimed were made to-him by the defendant, and which induced him to make the purchase. Various allegations as to false representations were stated in the complaint,—among others, that the defendant represented that the assets of the corporation were much larger in amount and value than they in fact were, and that its liabilities were less than they were; and, further, that the. profits of the business of the-company since its organization, being for two years prior to the-sale, were represented to have amounted to upwards of $13,000,— to wit, $5,598.97 for ‘the year 1889, and $7,644.51 for the year 1890,—when in truth and in fact there had been no profit realized in its business, but, on the contrary, there had been a loss in its business during said two years of uwards of $12,000. All rhe allegations of fraud in the complaint were put in issue by the answer. The case was tried before a struck jury, with great deliberation. The trial occupied eleven days, and the jury rendered a verdict against the defendant for the sum of $11,220.

The plaintiff gave evidence tending to show that, during the-negotiations which resulted in the purchase by him of the stock, the defendant exhibited to him a written statement of the assets and liabilities of the company, and that the statement was false ; that it exaggerated the assets of the company, and failed to state-all of its liabilities. The defendant, while conceding that some unimportant inaccuracies may have been incorporated in the statement, claimed that they were entirely unintentional on his part, and were so insignificant in amount as not to materially affect the value of the stock. As to the important and material items of the statement claimed by the plaintiff to be untruthful, the defendant introduced evidence consisting of his own testimony and that of quite a number of other witnesses, tending to show that they were not inaccurate, but were truthful statements, and represented the actual condition of the company at the time of the sale in question. The defendant contended that substantially all the entries in the statement claimed by the plaintiff to be erroneous, were not in fact so, but were made to appear to. be so by the adoption by the plaintiff of an erroneous, misleading system of bookkeeping.

After having examined the evidence, which covers nearly 600 pages of printed matter, we are. not prepared to say that the verdict was not supported by the evidence. It was a case especially adapted to trial by jury. Many questions arose at the trial upon the admission and rejection of evidence, and upon the charge of the court to the jury. Some of them are especially urged by the appellant’s counsel as of sufficient importance to justify and require a new trial of the action. They do not so impress us, although some of them are not free from serious doubt. The business of manufacturing pumps was formerly carried on in the city of Buffalo by a firm, composed of "Vollcer and the defendant, Felthousen. About two years prior to the sale of the stock to the plaintiff, a corporation was organized by Yolker and Felthousen, known as the .“Buffalo Steam-Pump Company,’’ and the assets and business of the firm were transferred to the corporation. With a view of inducing outside parties to purchase some of the stock of the corporation, a statement of the assets and affairs of the firm was prepared, under the direction of the defendant, and an affidavit was made by a Mr. Walker, which purported to give a statement of the condition of the business and its assets, which was exhibited to parties with a view to induce them to purchase the stock. Some of the particulars of the transfer of the assets and business of the firm to the corporation got into the case without objection, as did Walker’s affidavit. The plaintiff testified that the affidavit of Walker was exhibited to him by the defendant while the negotiations which resulted in his purchase of the stock were pending, and influenced his mind in making the purchase.

The plaintiff offered evidence to establish that Walker’s affidavit did not represent the true condition of the affairs of the company, but greatly exaggerated its assets and business, and that the defendant, knowing that to be the case, exhibited it to him for the purpose of deceiving him. The evidence was received against the defendant’s objection, upon the theory that it was competent to shown an independent, fraudulent act of the •defendant, similar in character to the one in question, as bearing upon the question of the defendant’s intentions in the transaction in question. It is doubtful if it was competent evidence for that purpose. It was quite remote in point of time, being two years or more prior to the time of the tale of the stock to the plaintiff; but, as heretofore stated, there was evidence tending to show that this affidavit of Mr. Walker was exhibited to the plaintiff while he was negotiating for, and before he purchased, the stock, and he had testified that it influenced his mind in determining him to make the purchase, that it induced him to believe that the assets of the pump company which he was negotiating to purchase an interest in was larger and of greater value than they really were. It was for that purpose, probably, competent evidence; and that was the light in which it was finally presented to the jury. They were charged that they were at liberty to consider it as evidence tending to show that the plaintiff might have been mislead thereby.

We do not find anything in the defendant’s exceptions requiring a new trial.

■ The judgment and order appealed from should be affirmed.

All concur.


author: Lewis, J.

text:
    John Wooster, App’lt, v. Joshua A. T. Bliss, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    Master and servant—Eon-liability on master.
    While an employer is required to furnish his employe with reasonably safe appliances with which to perform the work he requires him to do,and cannot carelessly expose the employe to greater danger than the latter, in the exercise of due care, has reason to anticipate, yet, if the employe has, by his superior knowledge or information, means of knowing or appreciating the probable danger not possessed by the employer, the latter is not liable for injuries sustained by the employe, though the work was undertaken upon his order.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      Emory P. Glose, for app’lt; H. J. Swift, for resp’t.
   Lewis, J.

This action was brought to recover damages for injuries sustained by the plaintiff, caused by the alleged negligence of defendant The plaintiff was thirty-five years of age when he received the injuries of which he complains. He had, from his? childhood, been about horses, and was familiar with their habits. He had worked as a coachman from twelve to fourteen years. He had worked for the defendant in that capacity for thirteen months prior to the accident. The defendant purchased a team of western horses in the spring of 1892, at Bast Buffalo. The plaintiff brought them from there to the defendant’s barn, in the city of Buffalo, and had charge of them, caring for and driving them as a coachman, for four to five weeks before he was injured. They were young horses, high-spirited, and somewhat fractious. They had not been out of their stable for four or five days previous to-the occurrence in question, on account of the weather being inclement. They were kept in a barn at defendant’s home, in Buffalo. The plaintiff was called as a witness in his own behalf, and gave the following account of what occurred at the time of the accident:

“They (the horses were) in first-class condition, I thought, by the way they acted in the barn. * * * Mr. Bliss came to the barn about 1 o’clock, and he said, 1 John, I want the team, about half-past 2, on the two-seated surrey, and I want you to take off the blinders.’ I said, 1 Mr. Bliss, I do not think it is safe to take those horses out without blinders on.’ He says, ‘Never you mind. I want yon to take off those blinders. I am going to drive this team myself. All I ask of you is to bring the horses to the house when I ring to you.’ And I said, ‘ All right. It does not make any difference who is going to drive them. It is not safe.’ He said : ‘ I will risk it. You bring out those horses when I ring for you to bring them out, at half-past 2.’ I hitched the horses up, and got into the surrey. My nephew pulled the door open, and I drove the horses out. When they got beyond the shadow of the barn, and the sun struck the carriage, they jumped, and got on a full run, and I did all I could to hold them. They ran out in front, and ran into a big elm tree. It was a two-seated surrey, with lamps on the sides; silver-mounted lamps, with glass in right by the forward seat. Could see the sun glinting on the silver when the horses started. As soon as we got in the sun, it kind of glittered, and the horses jumped. * * * Soon as they drove out there was a little curve to make, and they threw their heads back, and saw the carriage, and started. They ran as fast as I ever rode in a carriage. One horse ran on one side of the tree, and the other on the other side, and smashed the carriage up together, and threw me out, and broke my jaws. The horses got loose, and I found myself on the other side of the street.”

The account thus given was uncontradicted, and at the close of the evidence the plaintiff was nonsuited. The question is whether, upon these facts, there was any question which should have been submitted to the jury. Upon the undisputed evidence, the plaintiff had had much better opportunity to know the habits and disposition of the horses than had the defendant. He had been with them daily for four or five weeks; handled and driven them. He was quite as competent, and probably more so, than the defendant was, to judge as to the safety of driving them without blinders. He only consented to hitch them to the surrey upon the assurance of the defendant that he, and hot the plaintiff, was to drive them. Plaintiff testified that he would not have driven them without blinders. We do not see, upon these facts, what question there was which should have been submitted to the jury. We have examined the many authorities referred to in the brief of the appellant’s counsel. Many of them were cases where servants were permitted to recover in actions against their masters for injuries sustained while performing work which was apparently dangerous, by the direction of the master, upon his assurance that it was safe so to do. It is a well-settled rule of law that an employer is required to furnish his employe with reasonably safe appliances with which to perform the work he requires him to do ; and if the employer carelessly exposes the servant to danger greater than the servant, in the exercise of due care, "has reason to anticipate, or if the employer has, by his superior knowledge or information, means of knowing or appreciating the probable danger not possessed by the employe, the employer may be liable for injuries sustained" by the servant. It cannot be claimed, with propriety, that this case comes within these rules of law. Whether it was probably safe to drive these horses without blinders was a matter ■of judgment, based upon facts which, as we have seen, were better known to the plaintiff than they were to the defendant. The plaintiff’s experience with these horses and their habits, and his knowledge of horses generally, enabled him to form a more correct judgment in the matter than the defendant. According to his own testimony, he was not in much doubt about the danger. He felt quite certain that it was unsafe and dangerous to drive the horses without blinders. Entertaining that opinion, he should bave declined, under the circumstances, to have driven them. He could, had he chosen so to do, have led them to the house, instead of driving them. It cannot, with propriety, be claimed that he was under any coercion, for he testified that he would not have driven the horses without blinders. We are not aware of any reported case, upon such facts as are here presented, where a party has been permitted to recover damages. Statements may be found in some of the cases which seem to sustain the plaintiff’s contention, but, when examined, they will be found to be easily distinguishable from this case.

The nonsuit, in our opinion, was properly granted. The motion for a new trial should be denied, and judgment directed for the defendant upon the nonsuit.

All concur.


text:
    Allegany County, Pl’ff, v. Town of Wellsville, Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    «Counties—Resolutions op supervisors—Local laws.
    A resolution of a board of supervisors is not a local or special law within the meaning of section 15, chap. 401 of 1892.
    The facts agreed upon are as follows :
    During the years 1892, 1893, and 1894, and for many years prior thereto, the support of the poor of Allegany county was a county charge. By resolution of the board of supervisors of the county, passed November 13, 1830, each town of the county was made liable in the first instance for the support of its resident poor in the sum" of $10. After the expenditure of said $10, the poor became a county charge. Such regulation has ever since been in force. During the years 1892, 1893, and 1894 defendant’s supervisor received from the defendant, from licenses granted by the excise corfimissioners of the town, various sums of money-aggregating $2,127.50, which the defendant refused to pay over to the plaintiff. At a regular meeting of the board of supervisors of said county held in December, 1892, the treasurer of the county reported to the board that the towns of Grove, Hume, Andover, and Willing, in said county, had, after the passage of chapter 401 of the Laws of 1892, known as the “ Excise Act," paid to him, as such treasurer, excise moneys amounting to the sum of $575.28, which was reported by him to said board as belonging to said towns, and the board, by resolution, directed that orders be drawn payable from the contingent fund of the county, through the supervisors of the said towns to which said moneys belonged, and they were thereafter so drawn and paid to said towns.

      Charles H. Brown, for pi’if; Clarence A. Farnam, for de’ft.
   Lewis, J.

Both parties claim to be entitled to the money in ■question. The defendant concedes that, but for the passage of «chapter 401 of the Laws uf 1892, entitled “ An act to revise and «consolidate the laws regulating the sale of intoxicating liquors,’’ the plaintiff would be entitled to the funds in question. It is the -contention of defendant’s counsel that the law as it had theretofore existed was so changed by the act of 1892 that his client is -entitled to the fund. Power was given to the various boards of ■supervisors of the state, by chapter 197 of the Laws of 1827, to abolish by resolution all distinction between the county and town poor in their counties respectively, and have the expense of maintaining them a county charge. Such determination, duly certified by the clerk of the board, was required to be filed with the county clerk. Pursuant to the power thus conferred, plaintiff’s supervisors, in the year 1830, passed the following resolution :

“ Resolved, to abolish all distinction between county and town poor, and that from this time forward they may be considered county paupers.”

This resolution was properly certified and filed, as required by law. Chapter 569 of the Laws of 1890, known as the “ Town Law,” was in force at the time of the passage of the act of 1892. Section 181 of the former act reads as follows:

“ Excise Moneys—How Disposed of. All excise moneys shall be disposed of as directed by the town board of the town in which such moneys are paid, except in those counties where the support •of the poor is a county charge, in which case such moneys shall be paid into the county treasury, subject to the control of the board -of supervisors.”

A similar provision was contained in chapter 444 of the Laws -of 1874- By section 15 of the act of 1892, it was provided that: “ Every board of excise and every commissioner of excise of the town, shall within ten days after the receipt of any money by such board of commissioners, pay such money, or cause it to be paid to the supervisor of such town. Such moneys shall be applied to the payment of the ordinary expenditures payable from the gen-eral fund of the city or' town respectively, unless otherwise provided by a special or local law.”

It is conceded by the plaintiff’s counsel that, were it not for the concluding clause, of this section, to wit. “ unless otherwise provided by a special or local law,” the town would be entitled to retain these moneys. It is his contention that the resolution of the board of supervisors heretofore referred to answers the description -of a special or local law within the meaning of said act. We assume that the promoters of the act of 1892 had in mind to effect thereby some change in the law as it had theretofore existed. They provided that thereafter all excise moneys shall go to the town authorities, unless otherwise provided by a special or local law. It is altogether improbable that the legislature, when using such explicit language, had in mind to provide that the disposition to be made of such moneys was to depend upon the action of boards of supervisors, for, as we have seen prior to the passage of that act, whether the excise moneys went to the town or county depended upon the action of the supervisors of the county. If they took no action, -the town had the money. If a resolution of the board answers, the description of a special or local law within the meaning of the act, then no practical change in the law as it had theretofore existed was effected, for the power to determine where the moneys should go was still left with the supervisors.

It was provided by chapter 628 of the Laws of 1857 that all excise moneys should be paid to the county treasurer, for the use of the poor of the county. This was a general law, affecting the whole state. After the passage of' this act, local and special laws were from time to time passed, exempting different counties from the effect of this act of 1857, and making special provisions for the disposition of excise moneys of the various localities. These acts were upon the statute book, unrepealed, at the time of the passage of the act of 1892. It was such acts, we think, that the lawmakers had in mind in the special and local bills provided for by sections 16 and 18 of article 3 of the constitution, and not mere resolutions of boards of supervisors. Section 1 of the act of 1892 repealed all special and local laws in conflict with its provisions, and, were it not for the concluding words of section 15, “unless otherwise provided by a special or local law,” there would be no room for doubt. The towns of our state provide the machinery and pay the expenses of the collection of excise moneys, and there is a propriety in their having the direct benefit of the moneys arising from granting licenses. The act of 1892 as will be seen by an examination of its provisions, bears evidence that its promoters were not unfriendly to the traffic in intoxicating liquors. Section 40 of said act makes a radical change in _ what is known as the “Civil Damage Act.” Some of its features", which were considered severe and harsh by those engaged in the sale of intoxicating liquors, were modified in the interest of the business. The general policy of the legislation of the state prior to the passage of the act of 1892 had been to devote excise moneys to the support of the poor, thereby associating the traffic in liquor with pauperism. The act of 1892 expressly requires that such moneys shall be applied to the payment of the ordinary expenditures of the city or town respectively. The effect of giving the town 'the direct benefit of the moneys arising from the granting of licenses would probably be to promote the granting of licenses. If the excise money goes into the county treasury, a no-license town derives equal benefit from it with the town which grants licenses. If the money is to go directly to the town, its electors would naturally look with more favor upon the traffic than if the money is to go into the treasury of the county. We are of the opinion that the legislature had in mind, in passing the act of 1892, to effect a change in the law as it had theretofore existed, and provide that, without regord. to whether the poor are a town or county charge, the excise moneys should be paid to and belong to the town, unless there was a local or special state law making a different disposition thereof.

It follows that the defendant is entitled to judgment awarding to it the money in question.

All concur.


text:
    Marion E. Stone, App’lt, v. Alvah D. Pratt, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    Attachment—Warrant—Amendment.
    The court may correct an indvertent error in a warrant of attachment in stating, in the alternative, grounds which actually existed.
    Appeal from an order, denying a motion to amend a warrant of attachment and granting defendant’s motion to vacate the attachment

      Thomas Raines, for app’lt; Clarence E Shuster, for resp’t.
   Lewis, J.

A warrant of attachment was granted in this action on the 18th day of July, 1895. The grounds for the attachment were recited therein to be “that said defendant has assigned, disposed of, or secreted, or is about to assign, dispose of, or secrete, his property, with intent to defraud his creditors.’’ The attachment was executed, and the defendant moved to vacate and set it aside upon the ground first, of the insufficiency of the affidavits upon which the warrant was granted, and for the further reason that there was a failure to recite therein any ground for the attachment. The defendant’s motion was based upon the original papers on which the attachment was granted. Plaintiff thereupon obtained an order for the defendant to show cause why the attachment should not be amended by substituting the word “and" for “or," in the clause in the attachment in which the grounds were recited, so that it would read “that said defendant has assigned, disposed of, or secreted, and is about to assign,” etc. The motions, by consent of parties, were heard together. The special term justice held that the papers upon which the attachment was issued were sufficient to warrant its issue, but denied the plaintiff’s motion to amend, for the reason that he concluded that he did not possess the power to grant the motion. Defendant’s motion to vacate the attachment was granted.

It was quite satisfactorily shown by the affidavits upon which the attachment was issued that the defendant had been faudulently disposing of a portion of his property, with the intent to defraud his creditors, and that he was about to assign, dispose of, or secrete the balance of it, with a like intent. The papers made a very meritorious case for the attachment, but in preparing it, by inadvertence, plaintiff’s attorney used the word “or,” instead of “and.” It is provided by section 641 of the Code of Civil Procedure that a warrant of attachment must be subscribed by the judge and the plaintiff’s attorney, and must briefly recite the ground for the attachment. The only question we are required to consider is whether the provision requiring the statement of the ground of the attachment is so far mandatory that the court was powerless to correct the inadvertent error. It was not a case of a failure to state the ground for the reason that none in fact existed; for, as stated, the two .reasons which the draftsmen intended "to state in fact existed. The attachment, under our Code, is not an original process by which an action is commenced. It is a mere proceeding in an action. This action was commenced by the service of the summons and complaint. The office of the attachment was to take possession of and hold the debtor’s property until the recovery of the judgment, and thereby prevent him from fraudulently disposing of it. The office of the attachment was not to give the court jurisdiction of the action. The word “must,” in statutes, has been construed not to be mandatory. It was so held in Brinkley v. Brinkley, 56 N. Y. 192; Jenkins v. Putnam, 106 id. 275 ; 8 St. Rep. 710; Spears v. Mayor, etc., 72 N. Y. 442 ; People v. McAdam, 28 Hun, 284; People v. Supervisors of Ulster Co., 34 N. Y. 268; Dutchess Co. Mut. Insurance Co. v. Van Wagonen, 132 id. 398; 44 St. Rep. 441. There is nothing in section 641 expressly providing, or which indicates that the legislature intended, that a failure to fully state the grounds for the attachment should necessarily make it void. There being nothing in the statute prohibiting it, the court, we think, had the inherent power to permit the amendment. The attachment being a process in the action, power to amend it was given -the court by section 723 of the Code, which provides that the court may, at any stage of the action, in furtherance of justice, amend any process or other proceeding by correcting a mistake, etc. Orders permitting amendments in similar cases have been sustained in the cases of Kissam v. Marshall, 10 Abb. Prac. 424; People v. Cook, 62 Hun, 303; 42 St. Rep. 245; Gribbon v. Freel, 93 N. Y. 96; Peiffer v. Wheeler, 76 Hun, 280; 59 St. Rep. 106; Thames & Mersey Marine Insurance Co. v. Dimmick, 51 St. Rep. 41; Kibbe v. Wetmore, 31 Hun, 454. In the latter case the attachment was issued upon the ground that the defendant was a nonresident of the state, which was the only ground stated in the attachment. The court, on motion, allowed the writ to be amended by inserting therein that the defendant had disposed of his property with intent to defraud his creditors, and had kept himself concealed with like intent, and with intent to avoid service -of process. The case of Cronin v. Crooks, 143 N. Y. 352; 38 N. E. 268, upon which the respondent mainly relies to sustain the order, can, we think, be distinguished from this case. There the affidavit upon which the attachment was issued stated but a single ground, to wit, that the defendant had assigned and disposed ■ of her property with intent, etc. It was' recited in the warrant of attachment that defendant “has assigned or disposed of, or is about to assign or dispose of, her property, with intent,” etc. It was held that there was a failure to state any ground in the attachment, for the reason that .to state in the alternative is to state' neither the one nor the other fact. The question whether the court below possessed the power to grant an amendment of the attachment was not presented to the court for decision; for, so far as it appears, no such motion had been made. The amendment asked for here was manifestly in the interest of justice, and would have been granted, had the court concluded that it possessed the power so to do.

As we are of the opinion that the court had the power to grant the relief, and that it was a very proper case for its exercise, the order vacating the attachment should be reversed, and the plaintiff’s motion to amend the attachment granted.

All concur.


text:
    Patrick Conley, Resp’t, v. Charles C. Clay, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    Penalties—Action fob—Proof.
    The plaintiff is required to prove, before he is entitled to recover penalties under section 131, chap. 566 of 1890, facts bringing himself within the exemptions mentioned in section 130 of such act.
    Appeal from a judgment of the county court, affirming a judgment of the justice’s court in favor of plaintiff.

      Frank B. Whaley, for app’lt; William H. Clark, for resp’t.
   Lewis, J.

The defendant was a toll gatherer for the Bast Aurora & Spring Brook Plank-Road Company, a company incorporated in May, 1885, under the laws of the state of Hew York. As such toll gatherer, the defendant, on three different occasions in the year 1892, required the plaintiff to pay toll as a condition of passing the gate with a team. The plaintiff, claiming that he was exempt from the payment of toll, under section 130 of chapter 566 of the Laws of 1890, entitled “An act in relation to transportation corporations excepting railroads,” brought this action against the defendant in a justice court to recover three penalties of five dollars each, under section 131 of said act. He recovered judgment for the three penalties, amounting to $15, and the justice’s judgment was affirmed in the county court, and from the judgment of the county court an appeal was taken to this court. Section 130 of said act'provides that toll shall not be charged or collected at any gate upon a turnpike or plank road of persons living within one mile of the gate, by the most usually traveled road, when they are not engaged in the transportation of other persons or property. It is provided by section 131 that any toll gatherer who shall demand or receive from any person more toll than he is authorized by law to collect shall forfeit to such person the sum of five dollars for every offense. The plaintiff was required to prove, before he was entitled to recover penalties under this section, facts bringing himself within the exemptions mentioned in section 130. The plaintiff was the only witness called. He testified: That he resided on the Bast Aurora and Spring Brook plank road. That there was a gate maintained upon the road, which was situated about half a mile from his house. The defendant was the toll gatherer. That he had occasion to pass the toll gate on the 6th day of March, 1892. He was on his way, with a team, to the North Star Hotel, to see a man about some grape plants. The defendant’s son was at the gate, and demanded toll from him. The defendant was in the toll house at the time. Plaintiff stated that he was exempt from paying toll. In reply to a question by the son whether he was going to church he said he was not. He was required to and did pay toll, and passed on through the gate. On two other occasions during that month he paid toll at the gate, once to the defendant personally. This was the substance of the evidence. In this class of actions especially, we are not at liberty to indulge in presumptions in order to sustain a judgment. Plaintiff is asking to recover of the defendant penalties which he claims to be entitled to under a statute, and we must find, in order to sustain this judgment, evidence that he was entitled to drive over this plank road and pass the gate without paying the usual toll which the company was entitled to demand of persons generally who desired to pass through the gate with a team. The plaintiff was required to show that he lived within one mile of the gate, by the most usually traveled road. It appears by the articles of incorporation of the plank road that it is four miles in length, and from the line of its road as described it may be fairly claimed that the plaintiff established that he was living within one mile of the gate by the most usually traveled road; but it was also incumbent upon him to show, to be entitled to exemption from paying toll, that he was not engaged at the times in question in the transportation of other persons, or of the property of others. There was¡ perhaps sufficient evidence to justify the conclusion by the justice that on the occasion when the plaintiff was going to the North Star to see a man about some grape plants, he was not engaged in transporting other persons, or the property of others; but there is an absence of any evidence tending to show that on the two other occasions he was not so engaged. The burden of proof was upon the plaintiff to prove that he was not so engaged, and, having failed so to do, he was entitled to recover, at the most, but one penalty.

The judgment of the county court should be modified by reducing plaintiff’s recovery to the sum of $5 and the costs in the justice’s court, as of the time of its entry in that court. In other respects the judgment of the county court should be reversed, without costs to either party.

All concur.


author: Ward, J.

text:
    George W. Dull, Pl’ff, v. John Rohr, Sr., et al., Def’ts.

      (Supreme Court, Erie Special Term,

      Filed July, 1895.)

    Equity—Jurisdiction—Compelling conveyance.
    When a person who, without obligation to do so, deeds land for a nominal consideration, and through the carelessness or folly of the grantee, the deed is not recorded but is lost, and the grantee deeds to another for value, the latter, for the purpose of supplying a missing link in his record title, cannot compel the heirs of the first grantor to deed to him, where they make no claim to the premises.
    Action to establish title and possession to real estate.

      Frederick Haller, for pl’ff; L. L. Babcock, guardian, for infant def’ts.
   Ward, J.

Clara Schueler, of the city of Buffalo, was seised in fee of a strip of land on Monroe street, in that city, 25 feet front and 109 feet deep. She died intestate on the 20th of December, 1865, leaving her husband, Joseph Schueler, and Josephine Rohr and five other children. The plaintiff claims, and has given evidence tending to prove, that after the death of Clara the children conveyed by quitclaim deed to their father, Joseph, the premises, the deed expressing a consideration of only one dollar to be paid. This deed was never recorded, but the plaintiff claimed it was lost. Afterwards Joseph, for value, deeded the premises to the plaintiff, which deed was recorded. The plaintiff claims that when he purchased he was informed of the deed from the children to Joseph, and supposed it was recorded, and relied upon that fact. The plaintiff went into possession of these premises in 1883, and has since enjoyed the possession undisturbed, and no claim of adverse rights in the premises has been made against him, and none of the defendants make any claim to the premises now. Josephine Rohr died in August, 1894, intestate, leaving the defendants, her husband and children; the children being infants. Before the death of Josephine the plaintiff demanded of her that she execute a quitclaim deed of the premises to him. She declined, saying that she had executed one quitclaim deed, which was sufficient. • This action was brought to establish the title and possession of the premises in the plaintiff, as against the defendants. The father, John Rohr, Sr., is in default, and the plaintiff is entitled to judgment against him for the relief demanded in the complaint. The question here is whether the action can be maintained against the infant defendants, who submit their rights to the protection of the court. This action cannot be maintained as one to compel a' determination of a claim of real property, under article 5, chapter 14, of the Code of rCivil Procedure, because, to do so, there must exist an adverse claim to that of the plaintiff, which defendants make to the premises. Section 1638. The plaintiff does not invoke this statute, but claims that equity will require this relief upon some equitable principle, and seems to rely upon Kent v. Church of St Michael, 136 N. Y. 16; 49 St. Rep. 19. We are. met with the broad question whether, when a person who, without obligation to deed, does so, for a nominal consideration (in effect, a gift), and through the carelessness or folly of the grantee the deed is not recorded, but is lost, and the grantee deeds to. another for value, that other, for the purpose of supplying a missing link in his record title, can compel the heirs of the first grantor to deed to him. It will be observed that in the case before us there was never any obligation, by contract or otherwise, to deed to the plaintiff or his grantor, on the part of Josephine, nor was Josephine in any manner responsible for the loss of the deed to her father, and no act of hers created any obligation or estoppel against her in favor of the plaintiff. In this respect the case at bar differs from the ease in 136 N. Y. and 49 St. Rep. In that case a deed had been executed, pursuant to a contract of sale, to the vendee, but, through misfortune of the vendee, had been lost. The vendee then asked for another deed from those holding the vendor’s title, which was refused, and action was brought to compel a second deed. The court held that the action was in the nature of one for specific performance, and that inasmuch as the vendee was, by contract, entitled to a deed, and could have maintained an action for specific performance upon refusal to give the first deed, that action was maintainable, as the representative of the original vendor had still the title, and it would be inequitable to retain it as against the vendee under the circumstances of that case. Upon what principle, therefore, can Josephine or her heirs be called upon to repeat the voluntary act of conveying her interest in the property, when neither she nor any of her heirs have made, or now make, any claim to the premises ? The court is asked, in effect,, in this action, to assert the principle that whenever, upon search of the records, a party discovers a missing link in his title to» real estate, he may come into court, and compel a conveyance-from any one who may appear to have the record title, no matter whether that person makes any claim to the property or not, and although that person is under no obligation, legal or equitable, to make the conveyance. There is no foundation in reason or authority for such a proposition. It does not come under any branch of equity jurisdiction, and the court, as the guardian of these infants, cannot permit a recovery against them, or any title asserted against them, under the circumstances. It is time enough for the plaintiff to ask this relief when any adverse claim is made against him.

The complaint must be dismissed, as against -the infant defendants, with costs.

Ordered accordingly.


author: GIaynor, J.

text:
    George Dickey, as Sheriff, etc., Pl’ff, v. Andrew J. Bates et al., Def’ts.

      (Supreme Court, Rockland Special Term,

      Filed July, 1895.)

      1. Receivers—Title—When vests.
    A receiver, appointed upon the voluntary dissolution of a company, is vested with the company’s interest in the property by the mere making of ■ the order, -and his title and right of possession are superior to the right of subsequent attaching creditors, even though the company had no title to> the property as against such creditors.
    3. Sheriffs—Release of levy.
    A sheriff, who releases a levy of attachment at the instance of the attaching creditor, cannot recover for a subsequent conversion of the attached property.

      3. Receivers—Sale—Purchasers.
    Where the receiver finds the property not in the sheriff’s possession, but-in the possession of the dissolving company, and takes and keeps actual possession of it as the court’s officer and sells it by the court’s authority, the purchasers at the sale cannot be treated as trespassers for buying the1 property.
    Action for conversion of chattels.

      A. S. Tompkins, for pl’ff; Michael Hays, for clefts.
   GIaynor, J.

The plaintiff, the sheriff of Rockland county,, brings this action to recover damages of the defendants, for their alleged taking from him, and converting to their own use, certain chattels in which he claims to have had a special property by virtue of his levy thereon, under two warrants of attachment, followed by two executions upon the final judgments in the same actions. I do not see how he may prevail. He received two warrants of attachment against the property of the A. H. Jackman Manufacturing Company in two actions against the said company, ■—one on August 15, and the other on August 18, 1893. He did nothing in the way of making a levy until August 17th. The chattels he claims to have levied upon on that day he found upon the premises, and in the actual possession of another corporation ; namely, the Jackman Shoe Manufacturing Company. He made a list of them and then went away, leaving them where they were. He put them in no one’s custody. The possession he found and left them in was adverse to the attachment defendant as well as to the plaintiff’s interference. The chattels had been the property of that company, but in July it had formally sold and delivered them to the other company, and gone out of business. The plaintiff contends, and I find, that such sale was fraudulent and void as against creditors; and therefore the property transferred was subtect to attachment against the said transferring company. Hess v. Hess, 117 N. Y. 306; 27 St. Rep. 346. But this case extends further. As has been seen, the alleged levy was made on August 17th. But on August 16th, in a proceeding for the voluntary dissolution of the said Jackman Shoe Manufacturing Company to which the said property had been so sold and delivered, the supreme court had made an order appointing a receiver of the assets of the said company. The receiver did not take possession until next day, and whether before or after the said alleged levy on that day does not quite appear, though I have assumed before. But that does not matter, for he was vested with the dissolving company’s interest in the property by the mere making of the order the day before, and his title and right of possession were superior to the right of subsequent attaching creditors. Hence, if what the plaintiff did in reference to the property on the L7th were enough to constitute a levy under a warrant of attachment, which I doubt (Code Civ. Proc. § 649), and such levy was made prior to the receiver’s taking possession, it was, nevertheless, of no effect against the receiver. His title and right of possession under the order could not be lawfully interfered with, except by leave of the court which had appointed him; and this even though the dissolving company had no title to the property, as against the creditors of the said transferring company. It had acquired at least a qualified title by the transfer, namely, title subject to the rights of such creditors; and this passed to the receiver. High, Rec. § 136; Matter of Christian Jensen Co., 128 N. Y. 550; 40 St. Rep. 621; In re Schuyler's Steam Towboat Co., 136 N. Y. 169 ; 48 St. Rep. 830. It follows that the plaintiff never acquired any right of possession or title in the chattels as against the receiver, and that these defendants in purchasing them of the receiver, and receiving possession of them, did not unlawfully take them from the plaintiff, as the plaintiff alleges for his cause of action, but took them under full title thereto.

There is another reason fatal to the plaintiff. Judgments were .afterwards entered in the two actions, and executions issued thereon. Thereafter the receiver obtained authority of the supreme court to sell the property at public auction. The plaintiff threatened that he would not allow the property to be sold, whereupon the attorneys for the receiver obtained'and served upon him an order to show cause why he should not be punished for contempt of court, and meanwhile restraining him from interfering with the receiver’s possession, or the sale. Before the return day of such order the receiver sold the property according to the pending advertisement. The plaintiff was present, and gave public notice that he had a lien upon the property by virtue of the said attachments and executions, and objected to the sale. The defendants herein became the purchasers. Then the plaintiff put a keeper over the property, and announced that he would not allow it to be removed. The attorneys for the receiver then notified the attachment creditors and their attorneys that, unless the interference of the sheriff ceased, they would also move to punish them for contempt of court as his abettors. A reciprocal arrangement was thereupon made between the attorneys for the receiver and the attorneys forthe attachment creditors by which the ■contempt proceedings pending and contemplated were abandoned, and the sheriff, upon the direction of the attachment creditors withdrew his keeper. The receiver then delivered the property to the defendants without interference and they paid for it. Afterwards the plaintiff returned the executions nulla bona. If he had a levy, he released it by direction of the attachment creditors, and allowed the property to be taken away by the defendants. Its taking was therefore not a trespass. The attachment creditors in these circumstances can have no action against the sheriff, nor can he have any against the defendants. Marsh v. White, 3 Barb. 518.

I think there is another reason against the plaintiff’s recovering. If he got any lien by listing the property, and retained it notwithstanding his leaving the property in the adverse custody in which he found it, the receiver, nevertheless, found the property not in his possession, but in that of the dissolving corporation, and took and kept actual possession of it as the court’s officer, and sold it by the court’s authority. The said corporation had the legal title to it, subject only to the lien of the attachments, Scott v. Morgan, 94 N. Y. 508; and .that same title the receiver took, along with the actual possession. The only course, therefore, open to the plaintiff after the receiver’s sale, was to apply to the supreme court for a direction to its receiver to satisfy such a lien out of the proceeds of sale. Bank v. Schermerhorn, 10 Paige, 263. It cannot be that the purchasers at the receiver’s sale may be treated as trespassers for buying the property; for, in so far as such purchasers and creditors and claimants of the dissolving corporation were concerned, the dissolution proceedings, and the sale of the property therein, were, by force of the statute under which they were had m, rem, and all controversies in respect of interests and priorities passed to the fund. Judgment for the defendants.

Ordered accordingly.


text:
    Bunice M. Jones, Pl’ff, v. Mary Allan, Def’t.

      (Supreme Court, Niagara Special Term,

      Filed June, 1895.)

    1. Contract—Rescission—Fraud.
    A contract will not be rescinded for false and fraudulent representations unless it appears that such representations were made with knowledge of their falsity.
    3. Same—Value.
    Where the parties contract upon the apparent value of an article, and the vendor acts in good faith with reference to such value, no presumption cf fraud arises against him, though the actual value is less than the apparent value in consequence of conditions of which he was ignorant.
    Action for rescission of purchase by plaintiff of two canal boast from defendant.
    Boot, Orton & Baldvoin, for pl’ff; Kenefich & Love, for def’ts.
   Ward, J.

On the 30th of July, 1894, the plaintiff was the ■owner of a house and lot in the village of North Tonawanda, in Niagara county, and the defendant was the owner of two canal boats, then in the canal at Buffalo, named the Jacob Gingerich ■and the Ward H. Groesbeck. The defendant resided in Buffalo. The plaintiff desiring to purchase a couple of canal boats, and having learned of these boats, she went to Buffalo on the 30th, arriving there about six o’clock in the evening, accompanied by her brother William A. Seacock, a young man of eighteen years of age, and, obtaining an interview with the defendant and her husband, George W. Allan, Jr., the four went together where the boats were lying in the canal, and, after making some examination of the boats, the plaintiff and defendant entered into an agreement whereby the plaintiff agreed to purchase the boats at the price of $2,800, to be paid by the plaintiff conveying her house and lot to the defendant as of the value of $2,500. There was a mortgage on this house and lot of-. For this the plaintiff gave a chattel mortgage upon the boats for the amount of $700, and her promissory note for $700, secured by the chattel mortgage, and the plaintiff also assjimed a dry-dock bill for the repair of these boats, held by one Thomas Riley, a dry-dock man in Buffalo, for $276. The transaction was consummated by the execution of the proper papers. The plaintiff took possession of the-boats, and put a couple of coats of paint on them, with a view of preparing them for service on the canal and obtaining cargoes of grain for transportation. In order to have the boats and cargoes insured by insurance companies who engaged in insurance of that-character it was necessary to have the boats rated, as it is called, which was done by insurance raters, agents of insurance companies, who made examinations of the boats, and determined whether they were in a proper condition to carry with safety that kind of freight. An insurance rater, Mr. James G-. Orr, at the-plaintiff’s request, made an examination of the boats, and found, upon tearing up the lining or covering of the timbers, in the bows and sterns of the boats, and in boring into the timbers, that they were badly decayed, and he refused to rate the boats, or either of them, for carrying grain, and reported the fact to the plaintiff, who-immediately sought to rescind the contract by offering to return what she had received under it, and demanding that the conveyance of the house and lot to her (the plaintiff) be delivered, and canceled of record, and the surrender to her by the defendant of the chattel mortgage and the notes which it was given to secure, and did all in her power to accomplish such rescission. The bill for the repairs,, amounting to $276, not being paid, the lien for such repairs was foreclosed, and the boats were sold, and were purchased by a third party upon such sale, both parties to this action refusing to have anything further to do with the boats. The defendant refused to restore the property received in the transaction by her, and the plaintiff thereupon commenced this action, charging in her complaint that prior to the sale the defendant, with intent to deceive- and defraud the plaintiff, falsely and fraudulently represented to the plaintiff that the boats were good grain boats, and that their timbers were sound, and that the boats were in perfect condition for grain, and good to carry grain for six or seven years to come,, and were seaworthy; that one of said boats had been built twelve-years and the other thirteen years, and that the boats were worth $2,800; that the representations were false, to the knowledge of the defendant; that the boats in facts were thirteen and fourteen years of age, respectively; and negativing the other representations and-alleging rescission of the contract, and demanded judgment-that the deed, mortgage and note be delivered up and canceled, and-declared void, and for other relief, with costs. The defendant denied by her answer the plaintiff’s complaint. Upon the trial the-plaintiff and her brother were sworn as witnesses, and stated, in effect, that on the evening in question they examined the boats to-some extent by looking over them and into the cabin, and the defendant’s husband, in her presence, and with her apparent approval, stated that the boats were in perfect condition to carry grain; that they had just come off the dry dock, and wherever there was-poor timber in them it had been taken out and new put in their places; that the boats had been recalked whenever it was necessary; that the boats were twelve and thirteen years old respectively, and were worth $3,000 and the dry-dock bill, with the stock (the stock being horses and other things connected with the boat); that the boats would carry-grain for six or seven }mars with a reasonable amount of care. The defendant and her husband both testified in regard to these representations, and denied absolutely that they were made, or any of them. The plaintiff testified she relied upon these representations in purchasing the boats. The circumstances outside the testimony of the parties, as disclosed by the evidence, tended to some extent to strengthen the position of the plaintiff in regard to them, and I have reached the conclusion that they were made by the defendant’s husband, in her presence, and with her approval, substantially as the plaintiff claims; but, assuming that the representations were made, the chief difficulty with the plaintiff’s case is her failure to prove the scienter,—that is the knowledge of the defendant that the representations made by her were false. The evidence tended rather to show that she believed those statements and made them in good faith. In April, 1893, the defendant purchased these boats, paying therefor about $3,000. Two months later she sold them to one Sheet for the same price, taking back a mortgage on the boats of about $2,200. She did not navigate the boats in person, and in May, 1894, she foreclosed her mortgage, and again took the boats. There were liens upon the boats, other than her mortgage, of nearly $1,000, which she paid. The foreclosure of the mortgage was conducted in New York. The boats were brought back, after the foreclosure, to Buffalo, where they arrived on the 4th day of July, 1894. The defendant then sent the boats to the repair dock of Mr. Riley, with directions to Riley to put them in a fit condition to load, which seems to mean, in canal parlance, a condition fit to carry any load that the boats would ordinarily be called upon to take. The boats were repaired, as before said, at an expense of $276, and Mr. Riley swore, in effect, that he thinks the boats were fit to carry grain of all kinds after they were repaired; that before repairing them he looked the boats over with a view to ascertain what repairs needed to be made, and he did not discover any defects in the timbers in the bow or stern or elsewhere, but that he did not tear up the cov■ering on the timbers nor bore into the timbers, as was afterwards done by Mr. Orr. Mr. Orr testified that unless the linings were torn away, or the timbers bored into, the decayed condition of the timbers co'uld not be discovered, and the evidence seems to be that neither party knew of their decayed condition until Mr. Orr made the discovery through the means that he adopted. The defendant swore that she had no such knowledge. The principal difficulty with the boats was the decayed condition of the timbers. But for that, the boats would have been rated for carrying grain, and would probably have been of the value fixed upon them in the exchange of property. As it was, the boats were not worth, as the evidence discloses, to exceed $1,000. Evidence was given tending to show that the boats were thirteen and fourteen years of age, respectively, instead of twelve or thirteen, but from' the whole evidence it is clear that, whatever was said as to the age of the boats—and there was something said on that subject—was a matter of opinion. The boats had just come off from the dry dock and been painted at the time of the exchange of property, and the evidence convinces me that the defendant believed that the necessary repairs to the boats had been made, and that they were in condition to carry grain, and, in the absence of all knowledge of the condition of the timbers as subsequently disclosed, and as she had sent them to a proper place where all necessary repairs should be made, with directions, in effect, to have them done, and without limiting the cost of such repairs, she had a right to believe that the boats were put in the condition that she had directed that they should be. The misfortune of the situation seems to be that there were concealed defects in these boats, not known to* either party at the time of the exchange of property.

While equitable relief is sought in this action, it is predicated upon the alleged fraud of the defendant in making false and fraudulent representations, and the same quality of proof is required to maintain this action as if it were simply for damages for the alleged fraud. The rule in this class of cases is that the representations must be false; made with an intent to deceive as to a material matter. They must be false to the knowledge of the person making them, or that he assumed to know and intended to convey the impression that he did know them to be true; though conscious that he had no such knowledge. The person to whom such representations are made must rely upon them, and he must not have such knowledge or notice that under all the circumstances of the case would put a reasonable person upon inquiry, and be must be pecuniarily damaged by reason of the representatives and of which they are the approximate cause. In Shultz v. Hoagland, 85 N. Y. 467, the court of appeals say : Fraud is to be proved. “It is not enough that the facts are ambiguous, and just as consistent with innocence as with guilt. That would substitute suspicion as the equivalent of proof. They must not be, when taken together and aggregated, when interlinked and put in proper relation to each other, consistent with an honest intent. If they are, the proof of fraud is wanting.” And in Morris v. Talcott, 96 N. Y. 107, the court say: “ When the evidence is capable of an interpretation which makes it equally as consistent with the innocence of the accused party as with that of his guilt, the meaning must be ascrjbed to_ it which accords with his innocence, rather than that which imputes to him a criminal intent.” Judgéd by these rules, the proof fails to establish the plaintiff’s cause of action, which must be done by a fair preponderance of evidence in all cases ; and in cases of fraud the evidence must be clear and satisfactory. The learned counsel for the plaintiff earnestly urges the proposition that the consideration received by the plaintiff for her house and lot was so grossly inadequte as of itself to- create the presumption of fraud, and cites several cases, none of which aid us in the disposition of this case. The parties contracted upon the apparent value of the boats, and, the defendant having acted in good faith with reference to such value, no presumption arises against her of fraud although the actual value was less than the apparent value in consequence of conditions of which she was ignorant. If this were an action for a breach of warranty, the court might have much less difficulty in relieving the plaintiff. In such an action the scienter need not be proved. It is sufficient there to establish the warranty and the breach thereof ;■ that is to say, that the warranty was not true; that as a matter of fact all of the rotten timbers of the boat had not been replaced by sound ones. But here the plaintiff must establish, in addition to the representations and the breach, the moral turpitude of the defendant, apd fraudulent intent, which is the gravamen of this action. This the plaintiff has failed to do, and therefore her complaint must be dismissed upon the merits but, under the circumstances of this case, it should be without costs to either party.

Complaint dismissed, without costs.