text:
    Edward H. Chisholm, Resp’t, v. The State of New York, App’lt.

      (Court of Appeals,

      Filed February 9, 1894.)

    1. Negligence—Contributory.
    In an action for negligence, the absence of contributory negligence on the part of plaintiff may be established by circumstantial, as well as direct, evidence.
    2. Same—Question of fact.
    If different conclusions may be drawn from the circumstances proved, the question is one for the jury or the trial court.
    Appeal from an award of the board of claims made December 29, 1891, in favor of the claimant.
    The facts, so far as material, are stated in the opinion.

      T M Hancock, att’y-gen’l, for app’lt; James W. Watts, for resp’t.
   Bartlett, J.

This appeal is taken by the state of New York from an award, made by the board of claims in favor of the claimant for personal injuries sustained May 21, 1889.

The claimant at the time of the accident was a resident of the town of Whitestown in the county of Oneida. For several years prior to 1889 a public highway leading from Yorlcville to New York Mills in said town was carried over the Erie canal on a bridge constructed and maintained by the state.

In the spring of 1889 the state removed the bridge and replaced it with one made of iron. This new bridge was six or eight feet wider than the old one, and this fact necessitated the widening of the approaches.

The approach at the northeast corner was not graded up to the bridge for some days after the work in other respects was completed, and a hole was left which rendered said corner unsafe and dangerous and without proper guards and protection.

The accident happened while this state of affairs existed. At about nine o’clock in the evening of May 21, 1889, the claimant, a young man twenty-four years old, approached said bridge from the south and crossed it on the easterly side to the northeast corner where he stepped into the said hole and was precipitated to the canal bank below, a distance of about tdn feet, fracturing a rib and sustaining other severe and possibly permanent injuries. There is abundant evidence to establish that the state was guilty of the grossest negligence in leaving the bridge in the condition already described without proper guards and lights to warn the wayfarer of his danger.

The night of the accident was very dark; one of the witnesses testified “it was darker than pitch.”

The attorney-general insisted there was no proof offered by which the board of claims could find that the claimant was free from negligence contributing to the accident, and that the finding to the contrary was legal error. It was urged on the argument that it was the duty of claimant to have shown whether he was walking or running, whether he was under the influence of ljquor or sober, or whether he was exercising due care under the •circumstances.

Although it is a fundamental principle that the absence of negligence on the part of the plaintiff, contributing to the .injury, must be affirmatively shown by him, yet this may be done by direct proof or by circumstances. Hart v. Hudson River Bridge Co., 80 N. Y., 622 ; Hoffman v. Union F. Co., 47 id., 176-186 ; Button v. Hudson River R. R. Co., 18 id., 248.

If different conclusions can be drawn from these circumstances it is a question for the jury, or in this case for the commissioners.

The attorney-general cited the recent decision of this court in Weston v. City of Troy, 139 N. Y., 281; 54 St. Rep. 493, as a conclusive authority in his favor.

That case illustrates the distinction between the case at bar and many of the cases cited by the attorney-general.

The proof showed that the plaintiff, Mary Weston, while walking on one of the streets of Troy, in the forenoon of a March day, slipped and fell by reason of stepping on a ridge of ice that was plainly visible although covered by an inch or two of light snow. A verdict in her favor was reversed because there was no evidence as to the exercise by her of any care on the occasion.

Chief Judge Andrews remarked in the course of his opinion that the presumption which a wayfarer may indulge, that the streets of, a city are safe, and which excuses him from maintaining a vigilant outlook for dangers and defects, has no application where the danger is known and obvious.”

In the case at bar we have a state of facts which distinguishes it from the case just cited. Claimant was proceeding along a public highway on a very dark night; he was not required to avoid defects or- obstructions which he could not see.

In Harris v. Uebelhoer, 75 N. Y., at p. 175, Chief Justice Folger remarked: “A public highway may be used in the darkest night; a night so dark that the keenest and clearest vision might not be able to detect obstacles and defects. In such a case any man traveling upon it is practically a blind man.” One passing along a sidewalk has a right to presume it is safe. McGuire v. Spence, 91 N. Y., 303; Weed v. Ballston, 76 id., 329; Brusso v. Buffalo, 90 id., 679.

We are of opinion that the evidence fully sustains the findings of the commissioners that the state was negligent and the claimant was not.

It was also proved that the dangerous condition of the northeast corner of the bridge was not known to claimant,

Great stress was laid upon the fact that the claimant testified that he did not know how he fell; he stated under cross-examination : “ I think I stepped down one of the steps; after that I did not know anything until I was picked up down on the ground.”

It was insisted that claimant’s lack of knowledge on this point led to a failure of proof as to how he came to be lying at the bottom of this excavation ten feet in depth.

We do not so regard it, but on the contrary, consider that the claimant’s testimony, taken in connection with all the evidence in the case, leads irresistibly to the conclusion that he, without negligence on his part, on a dark night, fell into an excavation that the state, through its servants, had left directly in his path wholly unguarded in a public highway over which he was lawfully traveling.

The award is affirmed, with costs.

All concur.

Award affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Benjamin Weeks, App’lt, v. James O’Brien, as Executor, etc., Resp’t.

      (Court of Appeals,

      Filed February 6, 1894.)

    1. Pleading—Complaint—Condition.
    In an action upon a contract, which requires an architect’s certificate before payment of the last installment, to recover such installment, it is essential to allege in the complaint performance of that condition, or facts excusing plaintiff from procuring the certificate.
    2. Same.
    Such objection need not be presented by demurrer or answer; it may be raised on the trial.
    3. Contbact—Building—Architect's certificate.
    Where the owner, under a clause in the contract, gives notice to the contractor, and proceeds thereunder to complete the contract, a provision in such contract requiring the architect’s certificate is rendered inapplicable.
    Appeal from judgment of the general term of the superior court of the city of New York, entered upon an order made January 8, 1891, which affirmed a judgment in favor of defendant entered upon a decision of the court dismissing the complaint on trial at circuit.
    This action was brought to recover the last installment under a building contract entered into by plaintiff with Ellen O’Brien, defendant’s testatrix.
    The contract provided for the payment of the contract price in specified installments from time to time as the work progressed; the last installment upon its completion provided a certificate shall be obtained ” from the architect. The contract also contained this provision: “Fourth. Should the contractor, at any time during the progress of the said works, refuse or neglect to suoply a sufficiency of materials or workmen, the owner shall have the power to provide materials and workmen, after three days’ notice in writing being given, to finish the said works, and the expense shall be deducted from the amount of the contract.”
    The facts, so far as material, are stated in the opinion.

      Brainard Tolies, for app’lt; Abram Kling, for resp’t.

       Reversing 35 St. Rep., 463.

   Per Curiam.

The complaint was dismissed on the ground that it contained no averment that the architect unreasonably withheld his certificate of the completion of the building. The complaint ivas defective in this respect. By the true construction of the building contract the procuring by the plaintiff of the certificate of the architect that the building had been completed, was a condition precedent to his right to recover under the contract the last installment of $6,158, for which this action is brought. To meet this condition and to show a right of action it should have been averred in the complaint, either generally or specially, that the conditions precedent had been performed, or if the plaintiff relied upon a matter excusing him from procuring the certificate, the facts should have been stated. Thomas v. Fleury, 26 N. Y., 26 ; Bowery Nat. Bank v. Mayor, etc., 63 id., 336 ; Doll v. Noble, 116 id., 233 ; 26 St. Rep., 629 ; Oakley v. Morton, 11 N. Y., 25. The complaint neither averred that the certificate had been procured nor that it was unreasonably withheld. A copy of the contract containing the provision as to the architect’s certificate was annexed to the complaint. The action was upon the contract and the complainant alleged performance by the plaintiff and that the building had been substantially completed according to its terms. The contract made the architect’s ' certificate the evidence of that fact, and the plaintiff could not recover upon an allegation of the performance upon proving that the building had in fact been completed, without procuring the architect’s certificate, or showing that it had been unreasonably refused, or that the defendant had waived its production.

A defendant is authorized to raise the objection that the complaint does not state facts sufficient to constitute a cause of action on the trial, although the objection has not been taken either by demurrer or answer. Code, § 499. At the conclusion of the plaintiff’s evidence the defendant’s counsel moved to dismiss the complaint on the ground that under the contract the certificate of the architect was a condition precedent. The counsel for the plaintiff asked to go to the jury upon the question of unreasonable refusal of the architect to give the certificate. The court in answer said that" there is no such issue, and referred to the fact that there was no allegation upon the subject in the complaint This was the first reference on the trial to any defect in the pleading. The complaint set out the contract, its performance by the plaintiff, the amount unpaid, and demanded judgment therefor. The answer denied the complaint and set up as a counterclaim in substance that the plaintiff had not completed the building, but after he had commenced the work he abandoned it before completion, and that the defendant, after giving duo notice to the plaintiff, proceeded under the fourth section of the contract to complete the building according to the specifications, and did complete it, at a cost of $2,904.58, and also that the defendant had sustained damages by reason of delay, in a sum stated, and these several sums he demanded should be allowed as a set-off or counterclaim against the demand of the plaintiff.

On the trial the plaintiff proved the contract and proceeded to give evidence in detail of what he had done under it. It was claimed by the defendant that the plaintiff had not complied with the contract in several respects, but the principal ground of objection was that the plaintiff had not complied with the contract in respect to the floor of the basement. The plaintiff insisted that he had complied with the contract in that respect, and proof was given as to a demand upon the architect for a certificate, which was refused.

It is claimed that no question having been raised until the conclusion of the plaintiff’s evidence as to the sufficiency of the complaint upon the point of the architect’s certificate, and the trial having proceeded upon the issue whether the work had beenactu-, ally completed, without objection, it was then too late to raise the question of the sufficiency of the complaint in that respect. The court might very well have permitted an amendment, but no application to amend was made, and we think it was not too late to raise the objection at the conclusion of the plaintiff’s case. At least it was in the discretion of the court to entertain it at that stage of the trial.

But we think that the court erred in dismissing the complaint for a different reason. The defendant’s counsel on his cross-ex-animation of the plaintiff, proceeded to examine. him on new matter not involved in his direct examination, to sustain his counterclaim. He called out the fact that the defendant had given the plaintiff notice under the fourth section of the contract, and had proceeded thereunder to complete the contract. By so doing the provision requiring the architect’s certificate was rendered inapplicable. The object of that provision is to furnish to the owner of the building, when called upon to pay the contract price of the work, authentic evidence that the work to be certified has been performed. When the owner himself proceeds under the contract to complete the work he needs no architect’s certificate to apprise him whether the contractor has performed his contract. The owner does the work left undone by the contractor himself, and the contract provides how, in that case, the expense shall be adjusted as between him and the contractor. It is to be deducted from the amount unpaid in the contract, and that amount the owner is assumed to know. Where the contractor in that case sues for any installment, it is open to the owner to show how much he has expended in completing the work, and what allowances ought to be made for defective work, or any matter-going in reduction of the claim made. The complaint was defective in omitting suitable allegations for this cause of action. But the plaintiff asked to go to the jury upon this ground, and the trial judge put the nonsuit exclusively upon the ground that the complaint failed to aver that a certificate was unreasonably refused. We think this issue as to the completion of the work by the defendant, having been opened by the counsel for the defendant, and it appearing from his evidence that no certificate was necessary to enable the plaintiff to recover the difference between the last installment and the amount expended by the defendant in completing the work, the complaint should not have been dismissed upon- the ground upon which the motion was granted, but that the case should have gone to the jury upon the issue so litigated.

The judgment should be reversed and a new trial granted.

All concur.

Judgment reversed.


author: Andrews, Gh. J.

text:
    Andres W. Ketcham et al., Resp’ts, v. Henry Newman et al., App’lts.

      (Court of Appeals,

      Filed February 6, 1894.)

    Trespass—Shoring.
    Where contractors hind themselves to do the shoring as required by law, necessary to the erection of a building upon- the owner’s lot, the latter is not liable for trespass, committed by the former in entering upon the adjacent premises without the consent of the owners and occupants, unless done by his advice or direction.
    Appeal from judgment of the general term of the court of common pleas of the city and county of New York, entered upon an order made February 6, 1893, which affirmed a judgment in favor of the plaintiffs entered upon a verdict and also affirmed an order denying a motion directed by the court.
    This was an action of trespass.
    The plaintiffs were wholesale merchants and lessees of the first floor and basement of No. 632 Broadway, New York city, where they conducted the business of the sale of millinery goods. The defendants owned the adjacent lot on the south, and being about to erect a new building thereon, upon a plan which required their lot to be excavated twenty-two feet below the curb, entered into :a written contract with the firm of E. & S. E. Goodwin, professional shorers, whereby that firm agreed as follows:
    “ We agree to do the shoring, sheatli-piling and bridging (as required by law) that is necessary to erect buildings Nos. 628 and .630 Broadway, running through to Crosby street. Do the work, according to the plans and specifications, for the sum of one thousand one hundred and seventy-five dollars, work to commence at once when ready, $1,175 ; also agree to be responsible for any ■accident by improperly doing the work.”
    The foundation of the southern wall of the building occupied by plaintiffs was nine feet below the surface, and unless shored up in some way during the progress of the' excavation on the defendants’ lot, the wall would naturally be undermined and would probably fall. The contractors entered upon the premises occupied by the plaintiffs and inserted needle beams in the basement of the building, breaking the wall for that purpose, and occasioned serious damage to the stock of goods of the plaintiffs, from dirt, and their exposure to dampness, and greatly hindered them in the transaction of their business. There was conflicting evidence upon the question whether the contractors obtained permission from the plaintiffs to enter the premises for the purpose of shoring up the wall. The plaintiffs denied that such permission was given, and they gave evidence tending to show that they protested against such entry, and that the contractors, in defiance of their protest, invaded their premises and committed the trespasses of which they complain.
    On the part of the defendants one of the contractors testified in substance that before commencing the work he informed one of the plaintiffs that he was employed to do the shoring, and pointed out what was necessary to be done, and that he consented ■that the witness might proceed with the work. The judge submitted to the jury the question whether such consent was given, and charged them that if consent was given the plaintiffs could not recover in this action. It was conceded that the Goodwins were independent contractors, and the judge so charged the jury. It was shown that they had large experience in this kind of work, and their competency was not questioned. One of the contractors testified that he had forty years’ experience, and he further testified: “ I know of no other way in which I could
    have shored up that brick wall than the way which was employed.” It does not appear that the defendants gave any direc tions to the contractors during the progress of the work, or that they had any knowledge of the circumstances under which they entered the plaintiffs’ premises, or whether such entry was with or without the license of the plaintiffs. Their connection with the transaction commenced and ended, so far as appears, with the making of the written contract above given, except that one of the plaintiffs, after the work had progressed for some time, asked one of the defendants to intercede with the contractors to do the work in a way which would cause them less inconvenience, which he promised to do. The defendants neither employed nor had any control of the men engaged in the work. They were employed and paid by the contractors.
    The court charged the jury that if the plaintiffs gave no license to the contractors to enter the premises to do this work the defendants were liable for the injury sustained by the plaintiffs.

      Nathaniel Myers, for appl’ts; Eugene S. Ives, for resp’t.

       Reversing 51 St. Rep., 213.

   Andrews, Gh. J.

The entry by the contractors upon the premises without the license and against the protest of the plaintiffs was a trespass, and rendered them .liable for the damages sustained by the plaintiffs to their possession and to the merchandise in the store resulting from the unlawful entry. The liability would extend also to any person who advised or directed the unlawful acts. It was upon this principle that the court charged the jury that the defendants were liable if the entry was without the license of the plaintiffs. The court regarded the contract made by the defendants with the contractors as in law a direction by them to the contractors to commit the trespass complained of. If this view is well founded there was no error in the charge. But we are of the opinion that the construction placed upon the contract by the trial judge is not warranted. The Goodwins were independent contractors. This was so ruled by the court on the trial and was conceded on the argument here. This fact is only important to exclude any liability founded on the ordinary relation of master and servant. Where this relation exists the master may be liable for the wrongful act of the servant, although 'committed without bis authority and even in violation of his instructions, provided it was committed in the business of the master and within the scope of the servant’s employment. Higgins v. Watervliet Turnpike Co., 46 N. Y., 23.

But where a trespass has been committed upon the rights or property of another, by the advice or direction of a defendant, it is wholly unimportant what contractual or other relation existed between the immediate agent of the wrong and the person sought to be charged. The latter cannot shelter himself under the plea that the immediate wrongdoer did the act in execution of a contract, or that he came within the definition of an independent contractor as to the performance of the work in the execution of which the tortious act was committed. If he advised or directed the act his liability is established.

The contract entered into between the defendants and the contractors did not, as we construe it, authorize the contractors to commit a trespass upon the premises of the plaintiffs. In construing the contract it is important to consider the situation. The defendants were about to tear down the old building on their premises, and erect a new one according to plans which required an excavation of their lot to the depth of twenty-two feet They had a lawful right to make the excavation. The excavation would probably endanger the adjacent wall of the building of the plaintiffs. No common-law duty was imposed upon the defendants to shore up or protect the wall from injury. The building of the plaintiffs had no easement of support by the land of the defendants. The rule of the common law placed the burden of protecting the wall from injury from the excavation upon the owners of the wall. The defendants were bound only to the exercise of reasonable care in making the excavation, doing no unnecessary damage. Dorrity v. Rapp, 72 N. Y., 308, and cases cited.

Under the common law they had no right to enter upon the premises of the plaintiffs to shore up the wall, nor would they have been under any duty to do so, even if they were permitted by the owners of. adjacent premises. The legislature, recognizing the hardships imposed upon owners of improved property by the rule of common law, intervened by the act, chap. 6 of the Laws of 1855, as to the cities of New York and Brooklyn. By that act the duty was imposed upon lot owners to excavate their lots to the depth of more than ten feet below the curb, to protect at their own expense a wall on or near the boundary line of adjacent premises from injury from such excavation, “ if afforded the necessary license to enter on the adjoining land, and not otherwise.” The contract between the defendants and the contractors was made under this condition of the law. The defendants contemplated an excavation on their lot more than ten feet in depth. The law of 1855 cast upon them the duty to protect the wall on the lot of the plaintiffs, 11 if afforded the necessary license to enter ” for that purpose. The defendants made the contract, as is to be inferred, without having obtained the permission of the plaintiffs to enter upon their premises, but upon the assumption that the permission would be given. The contractors bound themselves to do the shoring “as required bylaw.” They were not authorized by the contract to enter the adjacent premises without permission of the owners and occupants. It was necessarily implied that they were employed to discharge the obligation imposed upon the defendants by the act of 1855, and it was a prerequisite that the consent of the owners or occupants should be obtained before entry could be lawfully made. The defendants neither in terms authorized an entry by the contractors as trespassers, nor can such intention be presumed. On the contrary, the contractors were to act “as required bylaw.” It would have been a complete answer to a claim by the defendants for a breach of the contract by the contractors, that the latter were unable to obtain the permission of Q the plaintiffs to enter the premises to do the work required, and that it could not have been done without such entry. If there was any evidence that the defendants advised or directed the trespass, other than that furnished by the contract, it should have been submitted to the jury. There was none to justify a ruling as matter of law that in the «absence of a license to enter the defendants were liable.

We think the trial judge erred, and that the judgment below should be reversed and a new trial ordered, with costs to abide the event.

All concur.


author: O’Brien, J.

text:
    Henrietta W. Wood, App’lt, v. Horace G. Young, as Executor, etc., Resp’t.

      (Court of Appeals,

      Filed February 6, 1894.)

    Limitation—Demand.
    The statute of limitations begins to run from the time a party, not an attorney, receives money for the use of another, or, at least, within a reasonable time thereafter, without a demand therefor.
    Appeal from .judgment of the general term of the supreme court in the third judicial department, entered upon an order made September 12, 1893, which affirmed a judgment in favor of defendant entered upon an order of special term confirming the report of a referee.
    This was a reference under the statute of a disputed claim presented by plaintiff to defendant as executor of the will of Thomas Cornell, deceased.
    The facts, so far as material, are stated in the opinion.

      F. L. Westbrook, for app’lt; A. T. Clearwater, for resp’t.
   O’Brien, J.

The plaintiff is the half sister of Thomas Cornell, who died in the month of March, 1890, leaving a will of which the defendant is the executor. On the 26th of September, 1892, the plaintiff presented the claim which is the subject of this controversy against his estate to the executor, in which she demanded, as her due, the sum of $5,000, with interest thereon, from the 1st day of April, 1876. The claim was disputed by the executor, and referred under the statute applicable in such cases, and the referee dismissed the claim upon the ground that it was barred by the statute of limitations. His report was confirmed by the court, and the judgment entered thereon affirmed at the general term. The facts upon which the decision rests are not disputed, and the only question presented is one of law with respect to the application of the statute to these facts. On the 25th of February, 1871, the plaintiff insured her husband’s life for $5,000, payable to her upon his death. He died on the 29th of January, 1876, and proofs of death were filed and the policy, having matured, and the claim perfected, she was entitled to receive the amount from the insurance company. On the 26th of February, 1876, the plaintiff executed to the deceased a power of «attorney authorizing him to demand and receive from the company the moneys doe her under the policy, andythey were actually paid to him on thé 15th of April following, namely, the sum of $5,298.45. The referee has found that the deceased knew that the sum so received by him belonged to the plaintiff, and that for more than ten years prior to the presentation of her claim the plaintiff supposed and believed that her brother had collected and received the money. There are also special findings to the effect that during all the time from the receipt of the money to the death of the testator, the plaintiff and her brother resided in the same county within about eight miles of each other; that their relations were cordial and intimate, frequently visiting each other, but that the plaintiff never demanded of the deceased the money so collected by him for her. It is then found that the deceased, without the consent of the plaintiff, appropriated the avails of the policy collected by him to his own use, and never paid over the same nor any part thereof to her, nor accounted to her therefor. The proof at the trial showed that the deceased, upon receiving the money, deposited the same to his own credit in a bank where his business was done, and that about the same time the deceased paid certain notes, drafts or other obligations of plaintiff’s husband, upon some of which he was liable as indorser, amounting to a larger sum. There is no finding or proof that the plaintiff ever consented to this use of the money, so that the liability of the defendant, as the representative of the estate, must be determined upon the facts as found.

By § 882 of the Code an action upon a contract obligation or liability, express or implied, except a' judgment or sealed instrument is barred after the lapse of six years from the time when the cause of action accrued. By § 410, wherever a demand is necessary to entitle a party to maintain the action, the statute begins to run only from the time of the demand, except with respect to certain cases mentioned in the first subdivision of the section, as to which the statute begins to run from the time when the person having the right to make the demand has actual knowledge of the facts upon which the right depends. If, upon the receipt by the deceased of the money and the deposit by him of the same to his credit in the bank, the plaintiff could have maintained an.action for its recovery at once, and without any demand whatever, then the decision of the referee was clearly correct, and this appeal cannot be sustained. The learned counsel for the plaintiff contends with much earnestness, in an argument that shows great care and research in its preparation, that some trust or fiduciary relation existed between the parties^growing out of their relationship to each other, and from the nature of the transaction, which required a demand to be made, or at least actual knowledge of the facts upon which that right depended, before the right to maintain the action was complete. But after a careful consideration of the authorities cited, and of all the reasons urged in support of his theory of the case, we .are of the opinion that his position cannot be sustained.

The facts of the case establish no other legal relations between the parties than that of debtor and creditor. The deceased had received from the insurance company moneys that belonged to the plaintiff by her direction and authority. It was the ordinary case of the receipt of money by one to and for the use of another, in which the duty rests upon the party receiving the money, from the moment of its receipt, to pay it over to the party for whose use it was received. It was the plaintiff’s money. The deceased had no lien upon it — no.right to retain it, nor any trust duty to discharge in respect to it. The law imposed upon him the obligation to pay it over to the plaintiff as soon as received, or at least within a reasonable time. There was nothing in the circumstances under which the money came to the hands of the testator from which the right or duty can be implied to hold it until actually called for by the owner. The obligation of the party who has received the money in such cases to pay it over, and his liability in an action to recover the same, without any demand before suit, has been firmly settled by a long line of cases that cannot be' distinguished from this by any sound distinction, Mills v. Mills, 115 N. Y., 80 ; 23 St. Rep., 604; Adams v. Olin, 140 N. Y., 150; 55 St. Rep., 257; Sheldon v. Sheldon, 133 N. Y., 1; 44 St. Rep., 260; Roberts v. Ely, 113 N. Y., 128; 22 St. Rep., 185 ; Middleton v. Twombly, 125 N. Y., 520; 35 St. Rep., 856; Diefenthaler v. Mayor, etc., 111 N. Y., 331; 19 St. Rep., 126 ; Jex v. Mayor, etc., 111 N. Y., 339 ; 19 St. Rep., 132 ; Stacy v. Graham, 14 N. Y., 492; Carr v. Thompson, 87 id., 160; King v. Mackeller, 109 id., 215; 14 St. Rep., 838; Lammer v. Stoddard, 103 N. Y., 672; 4 St. Rep., 225; In re Neilley, 95 N. Y., 382 ; Lillie v. Hoyt, 5 Hill, 395 ; Hickok v. Hickok, 13 Barb., 632.

The case of an attorney at law or a foreign factor is, perhaps, an exception to this general rule. An attorney at law has a lien upon the funds of his client collected in his professional capacity. By the common law he was not subject to an action for moneys so collected until after demand and refusal to pay, except in cases where he had applied the money to his own use, or otherwise wrongfully dealt with it. Taylor v. Bates, 5 Cow., 376. When an attorney has acted in good faith with respect to the money of his client which he has collected, he should be protected from the costs of a suit until, upon demand, he neglects or refuses to pay. But if the client has knowledge of the receipt of the money by the attorney, then the statute of limitations will begin to run from the time when the client had such knowledge, because upon that his right to make the demand may be said in such cases to depend. Bronson v. Munson, 29 Hun, 54

This exception to the general rule is, however, based upon reasons that have no application to this caáe. But even if we could apply the same rule governing actions against an attorney at law, still the finding as to the knowledge by the plaintiff of the receipt of the money would set the statute running from that time and so defeat the claim.

Our conclusion is that there was no error in the decision of the referee, and that the judgment must be affirmed, with costs.

All concur.

Judgment affirmed.


author: Finch, J.

text:
    The People ex rel. The Edison General Electric Company, App’lt, v. Edward P. Barker et al., Commissioners of Taxes, etc., Resp’ts.

      (Court of Appeals,

      Filed February 9, 1894.)

    1. Corporations—Penalty.
    The provisions of § 1 of 1 R. S., 589, does not apply to a corporation organized under chapter 40 of 1848.
    2. Same.
    In declaring and paying dividends where there are no surplus profits, the trustees subject themselves to the penalty imposed by the act.
    3. Taxes—Corporations.
    In making their assessments the commissioners of taxes are not justified in assuming that the treasurer of a corporation, for the purpose of evading taxation, has falsely underestimated the assets, because of a recent dividend, the declaration of which does not necessarily involve the fact of an unimpaired capital.
    Appeal from order of the general term of the supreme court, in the first judicial department, made November 10, 1893, which affirmed an order of special term dismissing a writ of certiorari brought to review the action of the commissioners of taxes and assessments of the city of New York in assessing and taxing the relator.
    The relator is a corporation organized under the general manufacturing act, with a capital stock actually paid in, or secured to be paid in, of §14,964,900, and was assessed by defendants for the year 1892 at $15,000,000, The relator applied, under § 820 of the consolidation act, to have the assessment corrected, and submitted to defendants statements in writing in answer to questions of the commissioners, which were sworn to by its treasurer, and were substantially as follows:
    ■“Total gross assets, exclusive of patent rights,
    value unknown .............. $9,459,500
    “ Capital stock actually paid in, or secured to be
    paid in .............. 14,964,900
    “Bate of dividend for last year................. 8a/c

    “Indebtedness, investments in real estate and stocks
    of other corporations....................... 13,676,634 ”
    Defendants thereupon reduced the assessment to $2,670,000.

      Charles E. Miller, for app’lt; David J. Dean, for resp’t

       Reversing 56 St. Rep., 798.

   Finch, J.

We are unable to distinguish this case from that of People v. Barker, 139 N. Y., 55; 54 St. Rep.. 444. In both cases the returns of the tax commissioners were identical except as to the respective amounts and values, and showed that the assessments rested upon the statements of the relators made in answer to the questions put by the assessors; in both those statero ents established that there was- no basis for a tax if they were accepted as true-; in both the value of patents was described as unknown, but the cost in stock issued was disclosed, and in both there was developed no circumstances justifying a belief of the answers made, except that in each case a dividend has been declared at some possibly recent period. In this case the dividend was eight per cent, and in' the earlier case four per cent, and we there declared the fact of a dividend paid to be immaterial under the existing circumstances. The legitimate effect of'such a fact upon the action of the assessing officers was not then much considered, but is now put in the front of the controversy, and claimed to furnish a decisive reason for the disbelief of the assessors in the statement furnished by the relator.

We might safely rest upon the authority cited, but since the point now urged was not then seriously argued or discussed, and is pressed specially upon our attention, we deem it proper to give it some degree of consideration. It proceeds upon an inference or presumption. The argument is that under the Eevised Statutes any declaration of a dividend except out of surplus is forbidden, since otherwise the capital is necessarily impaired by the distribution of stockholders; that no such violation of the law is to be presumed, but rather a due compliance with the terms; that a presumption of such a compliance arises from the fact of a dividend declared and paid, and so the lawful and necessary inference is that the capital has not been impaired, but that over it the necessary surplus had been accumulated; that such inference is inconsistent with and contradicts the statement made, showing the actual capital to have fallen from fifteen millions te about one-third of the amount; and so the commissioners had a right to disbelieve that statement and fix the v^lue of the capital upon their own judgment. There are two answers to this contention, one of which questions the presumption, and the other at least balances and nullifies it.

In the first place, the relator was incorporated under the general act of 1848, and the prohibition of the Eevised Statutes does not apply. The general act has its own prohibition and attaches it own sole and peculiar penalty, and one which leaves the companies in the matter of making dividends with an equal if root greater liberty. Excelsior P. Co. v. Lacey, 63 N. Y., 422. That penalty, and the only one imposed, is that the trustees shall become liable for all debts existing and contracted during their term of office, (Laws of 1848, chap. 40, § 13), and the practical effect follows that for the security of creditors the liability of the trustees is put in the place of the impairment of capital effected by the dividends. If the trustees choose to bear that responsibility they have power to declare and pay the dividend though no surplus exists beyond the capital, at least until some judicial restraint intervenes to prevent. It is probable that many such dividends are declared and paid, and their declaration in a given case scarcely justifies an inference that the capital necessarily remains intact and undimished in actual value. The presumption, 'if it exists, is extremely slender and weak.

But what there is of it is rebutted by another presumption springing from the facts which is that against the commission of fraud or crime. Here the treasurer of the company has sworn to a shrinking of the capital from fifteen millions to about nine millions, further chargeable with nearly five millions of debts, and obviously could not have honestly made that statement if in truth there had been no shrinkage of values at all, and so the two possible presumptions may be said to balance and neutralize each other.

The suggestions serve to show that the duty of the tax commissioners is not to subordinate facts, fairly disclosed and uncontradicted, to the influence of presumptions amounting to little more than a guess or possibility, but to deal with them fairly and intelligently. These officers are armed with power to ascertain the truth of answers given to the formal inquiries, and should always do so when the means of investigation are put before them. Here the facts for which they asked, and all that they asked, were furnished under the oath of the relator’s treasurer. If they were dissatisfied with his valuation of assets in gross they could have required them to be given in detail and so been enabled to judge of the fairness or unfairness of the valuation; but they were not justified in assuming that the treasurer, for the purpose of evading taxation, had falsely underestimated the assets, because of a recent dividend, the declaration of which did not necessarily involve the fact of an unimpaired capital. I think, therefore, that we were right in saying in the case cited that the declaration of a dividend even if sufficiently recent is an immaterial circumstance where the actual facts are furnished to the full extent required which show the real amount and value of the capital. Those facts may be investigated, but must not be disregarded to make room for doubtful presumptions.

The orders of the general and special terms should be reversed, without costs.

All concur.

Order reversed.


author: Bartlett, J.

text:
    The People, Resp’ts, v. The Equity Gas Light Company of the Eastern District of the City of Brooklyn et al., Appl’ts.

      (Court of Appeals,

      Filed February 6, 1894.)

    1. Equity.—Adequate remedy.
    A court of equity will not interfere to abate a nuisance in the highways of this state, when the matter can be dealt with effectually by the local officials, to whom the state has delegated a portion of its authority.
    2. Same.
    In such case, the attorney-general cannot maintain an action in the name of the people against a corporation.
    Appeal by the defendant, the Equity Gas Works Construction Company, from judgment of the general term of the city court of Brooklyn, entered upon an order made April 5, 1898, which affirmed an interlocutory judgment in favor of plaintiff entered upon an order of special term overruling demurrers by said defendant and the defendant John Devlin to the complaint.
    The nature of the action and the facts, so far as material, are set forth in the opinion.

      B. F. Tracy, for app’lts ; William G. Be Witt, and Jeese Johnson, for resp’t.
   Bartlett, J.

This is an appeal from a judgment of the general term of the city, court of Brooklyn, affirming an interlocutory judgment of the special term, overruling demurrer of the defendant, the Equity Gas Works Construction Company, to the complaint in this action.

This is a suit in equity brought by the attorney-general, upon his own information, to restrain the defendants from opening the streets of the city of Brooklyn and laying gas pipes therein. The complaint alleges the incorporation of the defendant, the Equity Gas Light Company, under an act of 1848, entitled “ An act to authorize the formation of gas light companies ”; also that its rights and powers were modified by chap. 144, Laws 1874; that certain streets, described in the city of Brooklyn are public highways of the state of New York, and are so used and occupied; that the said Equity Gas Light Company has no right to lay pipes in any of said streets, for the reason that its corporate powers long since ceased by failure to commence the transaction of its business within the period prescribed by law; that defend-' ant, the Equity Gas Works Construction Company, claims the right to lay said pipes under a contract with the Equity Gas Light Company; that the defendant, Devlin claims the right to lay said pipes by virtue of being an officer of said Equity Gas Light Company; that the Equity Gas Light Company and its officers are claiming the right through said construction company and Devlin to lay said pipes; that the claims and threats of the gas light company and ' of the other defendant are made under and by virtue of the articles of incorporation of said, the Equity Gas Light Company, and the act of 1874, and that if the defendants are allowed to proceed great injury will be done to the highways of the people of the state and a nuisance created by the tearing up of the pavements, making the trenches and laying the pipes therein. The prayer for relief asks that the defendants, and each of them, be enjoined and restrained from committing the said acts.

On the argument the counsel for' the people devoted much time to a very able discussion of three questions, viz. :' First, was the forfeiture under the charter of the Equity Gas Light Company self-executing; second, if so, had the corporation incurred the penalty of forfeiture by reason of failure to organize and commence the transaction of its business as required by law ; and third, did the act of 1874 relieve the company from this forfeiture.Under the disposition we feel constrained to make of this case it is unnecessary to pass upon any of these questions. We are of opinion that this action cannot be regarded as brought under any of the provisions of the Code of Civil Procedure.

The court below held, and the counsel for the people in his argument here contended, that this action is maintainable under § 1948 of the Code of Civil Procedure, subdivision 3. The general term stated this conclusion was reached after some hesitation.

Section 1948 provides when quo warranto can be maintained as follows, viz.: “ The attorney-general may maintain an action upon his own information or upon the complaint of a private person in either of the following cases: * * *

“ 3. Against one or more persons who act as a corporation within the state without being duly incorporated, or exercise within the state any corporate rights, privileges or franchises not granted to them by the law of the state.”

It is obvious from the bare reading of this section that the case at bar is not within its provisions. The section contemplates an action against individuals and not against corporations. This case is not in the nature of a quo warranto, but is a suit in equity to restrain the commission of an alleged nuisance by a corporation, its contractor and officer.

It is not averred that the Construction Company and Devlin are acting as a corporation without being duly incorporated, or are exercising "any corporate rights, privileges or franchises not granted to them by the law of the state, but, on the contrary, it is specifically alleged that the Equity Gas Light Company, the Construction Company and Devlin are claiming to act under and by virtue of the articles of incorporation and the act of 1874. The present action must, therefore, be dealt with as a suit in equity to restrain the commission of an alleged nuisance.

The learned counsel for the People urged that if this action could not be sustained under § 1948 of the Code, subdivision 3, it is maintainable in equity, as a matter of common law. This brings us to the question in the case we regard as controlling.

It is familiar law that the People can maintain a suit in equity to abate a public nuisance in the highways of this state when the circumstances of the case show it involves the public safety or convenience. It is equally true that a court of equity will not interfere when the matter can be dealt with effectually by the local officials, to whom the state has delegated a portion of its authority.

This was held in Attorney-General v. Metropolitan Railroad Co., 125 Mass., 515.

The court said: The jurisdiction of a court of equity to abate an existing or prevent a threatened nuisance, upon information filed by the attorney-general, is limited to those public nuisances which affect or endanger the public safety or convenience, and require immediate judicial interposition. Attorney-General v. Tudor Ice Co., 104 Mass., 239. The nuisance must be clearly established. District Attorney v. Lynn & Boston R. R. Co., 16 Gray, 242. And the court will not interfere where the obstruction to the rights of the public is of such a character that it may with equal facility be removed by other constituted authorities and public officers. Attorney-General v. Bay State Brick Co., 115 Mass., 431, 438.

“ There must be a want of adequate sufficient remedy and the injury to public rights must be of a substantial character and not a mere theoretical wrong.”

This same principal is sustained by the English cases. In Attorney-General v. The Sheffield Gas Consumers' Co., 3 De Gex, M. & Gr., 304, it was held that the disturbance of a pavement in a town by an unincorporated gas company for the purpose of laying down gas pipes was not such a nuisance as to warrant an injunction either upon a bill or upon an information.

In the case at bar the People have abundant remedy without coming into a court of equity.

The state has delegated to various officials acting under the present charter of Brooklyn ample power to protect and maintain the streets of that city.

We are, therefore, of opinion that the facts in this case do not warrant the intervention of the equitable powers of the court and the complaint must be dismissed as to the appellant, the Equity Gas Works Construction Company.

Judgment reversed and complaint dismissed as to defendant, the Equity Gas Works Construction Company, with costs.

All concur, except O’Brien, J., taking no part.

Judgment accordingly.


text:
    The People, Resp’t, v. Lucius R. Wilson, App’lt.

      (Court of Appeals,

      Filed February 6, 1894.)

    1. Appeal—Evidence.
    The court may, on its own motion on a criminal trial, strike out improper evidence and instruct the jury to disregard it, and it will be assumed that they obeyed.
    3. Same—Charge.
    Where the judge lays down erroneous propositions in his charge, but, upon objection, corrects the misdirection and lays down the proper rule, no error is presented for review.
    3. Evidence—Homicide.
    Upon the trial of an indictment for killing a police detective who (without a warrant) had arrested the defendant for burglary, facts and circumstances tending to show that the detective, when he made the arrest, had reasonable grounds to believe that the defendant had committed such crime, are admissible in evidence.
    4. Same.
    The fact that defendant’s revolvers were loaded, where he had abundant opportunity to reload, is not material.
    Appeal from judgment of the court of oyer and terminer of Onondaga county, entered upon a verdict rendered November 5, 1893, convicting defendant of the crime of murder, in the first degree and from an order denying a motion for a new trial.
    The facts, so far as material, are stated in the opinion.

      Harrison Hoyt, for app’lt; B. J. Shove, for resp’t.
   Bartlett, J.

This is an appeal from the judgment of the court of oyer and terminer of Onondaga county, and from an order denying a new trial on the conviction of the defendant of murder in the first degree. The defendant was jointly indicted with one Charles Wilson for killing James Harvey by shooting him with a revolver, at the city of Syracuse, on the 31st day of July, 1893.

The defendants, on being arraigned, demanded separate trials. The murdered man, James Harvey, was a police detective, of the city of Syracuse, about sixty years of age; had been a member of the police force twenty-four years, and a detective eighteen years.

Before examining that portion of the case relating to the homicide on the 31st day of July, 1893, it is necessary to consider a number of preliminary objections raised by the learned counsel for the defendant to portions of the district attorney’s opening address to the jury, and to evidence introduced in pursuance thereof. It will be convenient to group these objections and consider them together, as well, also, the exception of defendant’s counsel at the end of the People’s case, when the court refused, on his motion, to strike out said evidence. The district attorney’s declared intention in his opening address, and the evidence by which it was followed up, was substantially this, viz. : That on the night of June 5th, 1893, the shoe store of McBride & Co., on South, Salina Street, in the city of Syracuse, was entered by burglars, and several hundred dollars’ worth of property and some money carried away; that the defendants in this indictment, and a third person, all of them strangers in the city of Syracuse, for two or three days prior to the burglary, and on the day succeeding it, had taken meals at Palmer’s restaurant on Warren street in said city ; that Palmer and his head waiter were led to ■ suspect that these persons were connected with the burglary at McBride & Co.’s store, and they communicated their suspicions to the officers at police headquarters, the strangers having in the meantime disappeared ; that Palmer was instructed by the police authorities that if the suspected persons should at any time appear in his restaurant, he was to telephone the fact to headquarters ; that a day or two after the burglary, the chief of detectives told the deceased of the burglary; of the persons resting under suspicion; of the arrangements made with Palmer to telephone headquarters if the suspected persons should appear again in his restaurant, and thereupon instructed the deceased that, if he' received such a message from Palmer, he should go over and arrest the persons pointed out to him and bring them to headquarters.

The indefatigable and able counsel for the defendant, by numerous objections, opposed the offering of this evidence in its entirety and in detail. He strenuously insisted that it was fatal error for the court to admit this evidence, and urged with great earnestness and ability that it was an attempt to prove a crime not alleged in the indictment, and was calculated to greatly prejudice the minds of the jury. He also insisted that it was error to permit Chief Detective James Sheppard to testify as to the information conveyed and instructions given to Detective Harvey, the deceased, when he came on duty a day or two after the burglary ; it was urged that this was permitting the declarations of outside parties, and the proof of conversations at which the defendant was not present.

When the counsel for the defendant, at the close of the People’s case, moved to strike all this evidence from the record, the remarks of the court, in denying this motion, furnish the obvious answer to these objections. The trial judge said : “ The evidence was not received, so stated at the time, for the purpose of showing that á felony was committed, and that certain facts, whether true or otherwise, were brought to the knowledge of Detective Harvey, tending to show that he had reasonable ground, or cause, if it has that tendency, for making the arrest, if he did make the arrest, all of which are questions for the jury, of the defendant here; and the evidence is admitted in the case and allowed to stand for no other purpose.”

The district attorney was equally explicit in his declarations as to the object of this line of proof. He said: “ The purpose of it is to justify the officer ; to show, in accordance with the provision of the Code, that a felony had been committed, and that he had reasonable cause to believe that the defendant had committed it, and that the persons arrested had committed it.” The counsel for the defendant asked the district attorney if he intended to prove the burglary, and the reply was: “ Certainly, I propose to prove it was committed.” '

Then defendant’s counsel asked, “ And to trace it to this defendant?” The district attorney replied, “Not at all.” This was certainly as favorable a limitation of the proofs as the defendant could ask, and we do not wish to be understood as approving it.

At the close of the case the court, of its own motion, struck out a portion of the evidence thus objected to, making this statement: viz.: “ The only evidence that is allowed to stand is the evidence tending to establish the facts of the burglary and the statements and circumstances which came to Chief Harvey, which tend to show that, and has that tendency, that he had probable cause for making the arrest—that may stand in the case; that you will consider. But any evidence, as I stated before, tending to show that this defendant, or any other party, was guilty of this burglary, is stricken from the case and you must give it no consideration.”

This instruction to disregard the evidence stricken out was repeated by the trial judge in his charge to the jury.

We are of opinion that it was competent for the court, on its own motion, to strike out this evidence and instruct the jury to disregard it, and it will be assumed the instructions were obeyed. Greenfield v. The People, 85 N. Y., 75, 90, 91.

i The rule is also well settled that where a judge in charging the pry, lays down erroneous propositions, but, upon his attention jeing called thereto by objection, corrects the misdirection and lays down a proper rule, no error is presented for review. Eggler v. The People, 56 N. Y., 642; Greenfield v. The People, 85 N. Y., at page 90 and cases cited. This rule involves the same principle invoked by the trial judge in case at bar. We think sufficient evidence was left in the record, after this action of the trial judge, to justify submitting to the jury the question whether Detective Harvey, a felony having been committed, had reasonable cause for believing the persons to be arrested had committed it and was justified, as a peace officer, in making the arrest without a warrant.

We are also of the opinion that the trial judge was not called upon to strike any of this evidence from the record, as it was all competent to be submitted to the jury on the question whether Detective Harvey was justified in arresting the defendants in this indictment without a warrant.

We, however, go still further and hold that if this evidence had been offered generally in the cause, and without limitation, it would have been perfectly competent as bearing both upon the action of Harvey in making the arrest and the understanding of defendant that he was taken into custody upon a charge of felony.

The right to arrest without a warrant existed at common law, and is now authorized by the Code of Criminal Procedure, §177.

If the evidence remaining in the case satisfied the jury that the arrest of the defendants in this indictment was lawful without a warrant, it also had a most important bearing on the main branch of the case, which will now be considered.

On the day of the homicide, July 81, 1893, the defendants in this indictment entered Palmer’s restaurant, between nine and ten o’clock in the morning, and ordered breakfast. Daniel W. Savage, the head waiter, testified that at the time, he and Palmer were standing behind the bar, and as the defendants passed them, and when not more than six feet distant, he (Savage) remarked to Palmer: “ There goes the burglars.” He further swore that he spoke in as loud a tone of voice as employed by him while on the witness stand.

It was for the jury to decide, under this state of the proofs, whether the defendants heard this remark, and were thus early advised that they rested under suspicion.

The proof is that Palmer at once telephoned police headquarters, and that in about ten minutes Detective Harvey appeared upon the scene. It is at this point of the case that the materiality and importance of the evidence of the burglary, and the other facts already referred to become apparent.

It seems that Palmer requested Harvey not to make the arrest in his place, and the officer, therefore, waited until the defendants in this indictment came out on Warren street and walked north on the east side of that street. Detective Harvey having had the defendants identified, followed them, and while they were still on Warren street tapped them on the shoulders, and the three stepped into the doorway of an adjacent store, where they appeared to be engaged in a short and quiet conversation, of from one to three minutes, according to the evidence. They then started off, with the deceased between the defendants and about six inches in the rear, and proceeded northward on Warren street to Water street, and turned eastward on the south side of the latter street

It is important to bear in mind that this was the direct route to the police station.

It was, therefor, peculiarly the province of the jury to determine whether, in view of the evidence of the burglary and the other proofs connected with it, which the trial judge allowed to remain in the case, the remark of Savage when the defendants entered the restaurant the day of the homicide, the interview between Harvey and the defendants in the doorway after they left the restaurant, and the fact that they proceeded with him quietly, apparently turning into East Water street of their own motion toward the police station, and in advanee of' the officer, the defendants were not in the lawful custody of Harvey as a peace officer authorized to arrest without warrant.'

At the time Harvey and bis prisoners turned into Water street going east towards the police station he had not taken hold of either of them. As they approached a barricade across the sidewalk in front of a new building on East Water street, they were compelled to turn out into the street and at this point Harvey took each prisoner by the arm as they were passing the obstruction ; and at the further side of the barricade, at the point where they were about to return to the sidewalk, the fatal affray took place.

The defendant Lucius R. Wilson is somewhat taller and heavier than the other defendant, Charles Wilson, and wore on this occasion a dark derby hat, and Charles Wilson a light straw hat When Harvey was thus walking between his prisoners, having hold of the arm of each, Lucius R. Wilson was on his left side-and Charles Wilson on his right.

The facts relating to the shooting have been found by the jury ■on a conflict of evidence. The witnesses for the People establish substantially the following facts, viz.:

As the two prisoners and the deceased reached the northeast corner of the barricade, Charles Wilson exclaimed “let her go,” drew his revolver and seizing Harvey pulled him around striking him on the head with the butt end of his weapon. ' In the meantime Lucius R. Wilson broke away from Harvey’s grasp and moving off to a distance of eight or ten feet turned, and as the deceased stood in the street facing him, and apparently dazed from the blow dealt him by Charles Wilson, deliberately raised his revolver and shot him through the head, killing him instantly.

The two prisoners then fled over the Warren street bridge followed by a number of bystanders, and the defendant in this appeal was in a short time captured and locked up.

The defense swore several witnesses whose testimony tended to prove that the shooting was done by Charles Wilson, who wore the light straw hat. The preponderance of evidence was with the People, and the question as to who did the shooting was properly submitted to the jury. We think no injustice has been done the defendant, as the verdict is supported by abundant evidence. People v. Tice, 131 N. Y., 651; 43 St. Rep., 573. This ■disposes of the main point presented by the' learned counsel for the defendant, that the evidence is sufficient to sustain the verdict of the jury.

There are several other points which merit special attention under the rule that this court will consider any fact in the prisoner’s favor, even if not presented by exception.

The counsel for the defendant insists that it was improper to bring into court during the trial the other defendant in this indictment, Charles Wilson, and allow him to be repeatedly identified by various witnesses.

It is beyond dispute that these defendants were both present at the time of the homicide, and it is quite possible the ends of justice were subserved by the presence of Charles Wilson in the ■court room. We are of opinion that this matter was wholly within the discretion of the trial judge, and that the convicted defendant was in no wise prejudiced by this procedure.

The defendant’s counsel called our attention on the argument to the fact that when the defendant on this appeal was arrested, ■and a bystander accused him of the murder, he urged that both his revolvers were loaded, which proved to be true. '

The- fact is, that the defendant was found, when arrested, secreted under the stoop of a house back in the yard from the street, and abundant opportunity was offered him to re-load his revolver.

There is some evidence in the case tending to show that he was engaged in that act when crossing the Warren street bridge after the shooting of deceased.

It is also proved that the defendant was searched immediately ■after his arrest, and a quantity of cartridges fitting both of his revolvers were found upon his person.

In view of all these circumstances, we are not inclined to give weight to the fact that defendant’s revolvers were loaded at the time of his arrest.

In reading the charge of the learned trial judge we have been impressed with its great fairness towards the prisoner; but we feel constrained to say that there was no evidence in this case tending to show that these defendants were in danger of bodily harm, or injury, at the hands of Detective Harvey, while he had them under arrest; on the contrary, the evidence is uncontradicted that he was conducting these defendants to the station house in a kindly and considerate manner that should have exposed him to no violence.

There was an abundance of evidence to go to the jury as to this arrest being lawful, and the jury were justified in so finding ; but if, by way of argument, it be treated as an illegal arrest, the defendant was not justified in slaying James Harvey. It was a ruthless assassination.

There are a large number of exceptions in the case which relate to the questions we have already ruled upon.

If there are others not specially mentioned, it is not to be inferred that we have failed to examine them.'

The case comes here on a voluminous record, and in the discharge of the duty imposed upon us, to review the facts in every capital case, and to determine whether, upon all the evidence, there is, in our opinion, good and sufficient reason for setting aside the verdict of the jury and granting a new trial, we have examined this record’ with the greatest care, both as to the facts and the law, and have reached the -conclusion that the conviction mnst be affirmed.

The judgment of conviction and the order denying a new trial, are affirmed.

All concur.

Judgment affirmed.


text:
    The People ex rel. The Second Avenue Railroad Company, Resp’t, v. Edward P. Barker, et al., as Commissioner of Taxes, etc., App’lt.

      (Court of Appeals,

      Filed February 6, 1894.)

    Taxes—Corporation.
    A corporation, in the assessment of taxes, is entitled to have its indebtedness deducted from the value of its corporate assets.
    Appeal from an order of the general term of the supreme court in the first judicial department, made June 9, 1893, which affirmed an order of special term setting aside an assessment for taxation upon the relator’s capital-stock.
    The facts, so far as material, are set forth in the opinion.

      David J. Dean, for app’lts; Charles E. Miller, for resp’t.

       Affirming 56 St. Rep., 186.

   Bartlett, J.

The relators were assessed for the purpose of taxation upon capital stock for the' year 1892, in the sum of $968,973. In July, 1892, they sued out- a writ of certiorari to review the proceedings of the tax" commissioners.

The special term of the supreme court reversed the adjudication of the tax commissioners, and vacated the assessment. The general term, in affirming this order, considered at length the question whether, as a matter of law, the debts of the relator were necessarily deductible from the value of the corporate assets. We are satisfied with its conclusions on that point, and will not consider the question at length on this appeal. ' We think the respondent company was entitled to have its indebtedness deducted from the value of its corporate assets, which constituted its capital stock, or capital, as distinguished from its actual share stock. The rule has been repeatedly recognized by this court. People ex rel. Union Trust Co. v. Coleman, 126 N. Y., 433; 38 St. Rep., 237: People ex rel. Edison Electric Illuminating Co. v. Barker, 139 N. Y., 55; 54 St. Rep., 444. In this last case Judge Peckham remarks, at page 68, after considering the indebtedness of the corporation, as follows, viz. :

“This indebtedness must, in the nature of things, be taken into consideration in arriving at the value of the capital of the relator. And when it is seen that the indebtedness of a corporation is double the amount of all its assets, it follows, upon the system adopted by the state for the assessment of corporations, that the actual value of the capital of such a coporation is zero.”

The case at bar presented a similar situation. According to the statement furnished by the relators to the commissioners, the following state of affairs was disclosed, viz.:

Real estate, assessed value.................... $531,027 00

Personal property ................. 590,269 12

Total................................. $1,121,296 12

Liabilities.................................. 1,938,873 65

Excess of liabilities..................... $817,577 52

The commissioners made up a statement as follows, viz.:

Personal property .......................... $1,500,000

Assessed value of realty..................... 531,027

Amount subject to tax.................. $968,973

There is no contention on the part of the commissioners that they deducted the indebtedness.

It is, therefore, of no importance which statement is taken as a basis of computation.

Taking the figures of the commissioners, by which they are certainly concluded, and deduct from the amount of $968,973, they find subject to taxation the indebtedness of the company of $1,938,873.65, and it is apparent that there is no capital subject to taxation, and the assessment in this case is illegal and must be set aside.

The orders of the special and general terms are, therefore, affirmed.

All concur.


author: Barnard, P. J.

text:
    Elizabeth D. De Lancey, Resp't, v. Henry Piepgrass, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

      1. Ejectment—Judgment.
    A judgment to recover possession of land takes all structures wrongfully created upon it.

      2. Amendment—Execution.
    The court may allow an execution, in an action of ejectment, to be amended by inserting words which have been inserted in the judgment at the instance of the defendant, where the latter’s rights will not be prejudiced thereby.
    Appeal from so much of an order entered July 7, 1893, as amended an execution.

      George A. Black, for app’lt; Walter D. Edmonds, for resp’t, De Lancey ; John Hunter, Jr., for resp’t, Hunter.
   Barnard, P. J.

Judgment was entered in this action on the 19th of June, 1891. The court of appeals had modified the judgment of the supreme court so as to conform to the conditions contained in the grant from George the III., King of Great Britain, by Robert Monkton, Captain General, to Benjamin Palmer, May 27, 1683. Before the entry of judgment, the modification yras made in substance so as to conform to the decision of the court of appeals, and an execution was issued on the 24th of June, 1893, for the recovery of the possession of the premises. Subsequent to the issue of the execution, the defendant, Piepgrass, applied to the court to insert the very words of the conditions in the Palmer grant, but directed the amendment to be made nunc pro tunc as of the date of the entry of judgment. There is nothing in the judgment as modified, which will permit the defendant, Piepgrass, to keep possession of a dock and other structures erected upon the plaintiff’s land. A judgment to recover possession of plaintiff’s land takes all wrongfully created upon it. An action of ejectment would be of no use if such structures had any influence upon the question of the title, which alone fixes the rights of the parties.

The amendment was within the power of the court. Code, 721, 722, 723.

The order should therefore be affirmed, with costs.


text:
    Edgar L. Ryder, as Assignee, etc., Resp’t, v. John Duffy, as Sheriff, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Assignment fob cbeditobs—Assignee.
    Immediate possession of the assigned property is taken by the assignee, where, directly after the execution of the assignment, the property passes into his possession, and the assignor exercises no control over it, save to assist in the sale of some of it.
    Appeal from a judgment in favor of plaintiff.

      William Homer (Nelson H. Baker, of counsel), for app’lt; Smith Lent and Charles Wesley, for resja’t.
   Barnard, P. J.

Edward Nolan on the 6th of July, 1892, made a general assignment to the plaintiff. The assignor was a grocer and his stock of groceries passed by the assignment. There was preferred in the assignment a debt of $1,000 to James 0. Driscoll for money loaned by Driscoll to the assignor as was' stated in the assignment. On the 12th of July, 1892, the sheriff by virtue of an attachment against the property of the assignor, took the property in question from the possession of the assignee. The sheriff justifies the seizure by an averment that the assignment was made by Nolan with intent to defraud his creditors and that the property was the property of the assignor at the time of the seizure. Upon the trial the assignment was proven and the fact that immediate possession of the assigned property was taken by the assignee; that the property was immediately advertised for sale at public auction. In the interval; some eight or ten days, the assignee, sold at private sale and the assignor aided in putting up goods sold at the request of the assignee, for which the assignee received the purchase price. The assignor was in and about the store up to the sale at public auction but had no control whatever.

There is, therefore, a complete failure of proof tending to show that an immediate possession was not taken and held by the assignee. The assignor’s wife is a sister of Driscoll. Before her marriage she was her brother’s housekeeper, and he owed her $1,000 for that service. He sent her a check for that sum which the sister handed over to her husband. Driscoll intended this $1,000 as a gift to the assignor’s wife, but she never so intended and never even knew of his intention. As the case stands, Driscoll owed his sister $1,000 for services. He sent a check which was received by the assignor. He intended this to be a present to the wife, but she knew nothing about it. Driscoll still owes his debt to his sister, and the assignor has never obtained any title to the $1,000.

The preference of the debt in the assignment is, therefore, just and legal, and the judgment should be affirmed with costs.


author: Dykman, J.

text:
    Frederic W. Helmke, v. Henry J. Stetler.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Re abq ument—Appeal.
    Where, on the argument, nothing was overlooked and no principle of law violated, and there is nothing to induce a belief that any different conclusion could or should be reached, a reargument will not be ordered.
    Motion for a reargument.
   Dykman, J.

This is a motion for a reargument of the appeal in this action. The action was for the recovery of damages resulting to the plaintiff from the kick of a horse.

The appeals were from the judgment and order denying a motion for a new trial on the minutes of the court, and also from an order denying a motion for a new trial upon newly discovered evidence.

The case was fully examined and an opinion was written in the case. The appeals presented no difficult questions. The verdict and judgment were in favor of the plaintiff, and were amply sustained by the testimony.

The affidavits upon which this motion is based fails to make a case for a reargument.

Nothing was overlooked and no principle of law has been violated, and there is nothing to induce a belief that any different conclusion could or should be reached.

The motion should be denied, with ten dollars costs and disbursements.


author: Pryor, J.

text:
    James Connolly, Resp’t, v. Henry Maurer et al., App’lts.

      (New York Common Pleas, General Term,

      Filed January, 1894.)

    Masteb abd sebvast—Fellow-sebvabt.
    Where the co-servant, whose negligence caused the injury, is simply performing the work of a servant in his character as such, the master is not liable.
    Appeal from judgment on a verdict, and from order denying a new trial.
    The facts sufficiently appear in the opinion.

      Hamilton Wallace, for app’lts; Samuel Cohn, for resp’t.
   Pryor, J.

In one aspect of the charge the learned trial judge appeared to put the case to the jury on the theory of an employer’s obligation to furnish a safe place for his workmen. But this principle of a master’s liability for an injury to his servant is inapplicable upon the evidence.

The defendants, as contractors, were engaged in the erection of a building, and they employed the plaintiff in the process of construction. Of such work, under such conditions, insecurity in the performance is a necessary incident; and of' that insecurity the employe assumes the hazard. “ The deceased was employed to handle and move to the repair shops damaged and disabled cars, and took the risk of his employment in that respect.” McCosker v. R. R. Co., 84 N. Y., 77, 82; Brick v. R. R. Co, 98 id., 211, 215 ; Arnold v. D. & H. C. Co., 125 id., 15 ; 34 St. Rep., 372.

The arch which fell with the plaintiff was too recently built for the cement to set, and, under the pressure of his weight, it gave way and threw him to the ground. The cause of the plaintiff’s injury was his standing on the arch in its condition of incompleteness and instability.

Who was responsible for the act that occasioned the plaintiff’s fall ? He got upon the arch in ignorance of its insecurity and in obedience to the command of the foreman, to whose orders he was subject. His fall, therefore, was in no way the effect of his own negligence, but was the consequence of the misconduct of the foreman in urging him into a situation of which the danger was known to the foreman. Indeed, it was the act of the foreman that made the arch unsafe; for he ordered the centers to be removed prematurely, and directed the weight upon the arch which aggravated its insecurity. In short, the negligence of the foreman caused the plaintiff’s injury.

The question upon which the appeal depends is: Was the negligence of the foreman the negligence • of the defendants ? In other words, was the foreman a vice-principal or a servant engaged with the plaintiff in a common employment ?

In Loughlin v. The State, 105 N. Y., 159; 6 St. Rep., 826; the court of appeals propounds the test for determining the relation of fellow-servants in these terms: “ The liability of a master for negligence causing injury to a servant, where the negligence complained of is not the personal act or omission of the master, but of a co-servant, turns upon the character of the act or omission. If the co-servant, whose negligence caused the injury, was at the time representing the master in doing the master’s duty, the latter is liable; if, on the other hand, the co-servant was simply performing the work of a servant in his character as such, the master is not liable. The fact that the person whose negligence caused the injury was a servant of a higher grade than the one injured, or that the latter was subject to the direction or control of the former and was engaged at the time in executing his orders, does not take the case out of the general rule nor make the master liable.” Cullen v. Norton, 126 N. Y., 1; 36 St. Rep., 359; McCosker v. R. R. Co., 84 N. Y., 77; Crispin v. Babbitt, 81 N. Y., 516; Geoghegan v. S. S. Co., 22 N. Y., Supp. 749 ; 51 St. Rep. 868.

The defendants were contractors for the erection of the building. Charles Michael was their general superintendent, having “ charge of these different jobs.” Henry Froelich was foreman of the men engaged in the construction of the arches—the particular work in which the plaintiff was employed when he sustained the injury. Froehlich first engaged the plaintiff in the service of the defendants ; “told me when to work and when to stop; when my services were no longer required and when they were required; he was the man that would tell me what to do on all these jobs.”

Upon the evidence, no personal negligence is imputable to the defendants; and thus the point for decision is whether they be liable for the negligence of the foreman. The question is of difficult and doubtful solution; but, having the advantage denied to the learned trial judge of a critical examination of the authorities adduced by counsel, we are enabled to trace accurately the line of analogy between the case at bar and previous adjudications.

In Laughlin v. State, Wells was foreman of the men engaged in the work, with power to "direct them in the manner of its execution. He put the bank of earth in a dangerous condition and set the plaintiff to work under it, when it caved in and crushed him. In McCosker v. R. R. Co., Luke was yardmaster, the intestate his assistant, hired by him and under his control and supervision. By his order the intestate incurred the peril, and by his negligence was killed. In both cases the men were held to be fellow servants, and the principal absolved from responsibility.

This case is in every essential circumstance identical with those, and, as our decision must conform to the adjudication of the court of appeals, the inevitable conclusion is that the learned trial judge erred in declining to dismiss the complaint Geoghegan v. S. S. Co., Crispin v. Norton; McCosker v. R. R. Co., supra.

Judgment reversed and new trial ordered, costs to abide event.

Bookstaveb, P. J., and Bischoff, J., concur,


author: Bookstaver, J.

text:
    William Malsky, an Infant by Nathan Krauskoff, his Guardian, etc., App’lt, v. Schumacher & Ettlinger, Resp’ts.

      (New York Common Pleas, General Term,

      Filed January, 1894.)

    1. Master and servant—Minor.
    A minor, as far as the danger is known and obvious to him, is as legally responsible for his own protection as a person of full age.
    2. Same.
    The risk assumed must be measured by the care proper to his age and condition.
    3. Same.
    The master is not liable for the result of an accident which occurred because his foreman distracted the attention of the minor from his work.

      4. Evidence—Documentary.
    In an action by a minor for a personal injury, the judgment roll in his father’s action for loss of services is not competent.
    Appeal from a judgment for the defendant dismissing the complaint at trial term.

      Leopold Leo, for app’lt; J. B. Tahnage, for resp’t.
   Bookstaver, J.

On Saturday, July 7, 1889, Louis Maisky, the father of the plaintiff, applied at the place of business of the-defendant corporation for employment for his minor son. He asked for light work for him, and was told to bring his son the following Monday and he would obtain employment. - There was no other restriction as to the kind of work which he was to do other that it should be light. According to the father’s testimony, the plaintiff was not with him when this arrangement was made, but waited for him outside. On Monday the father took his son to the defendant’s place of business, but did not go in. He was then set at work tying strings in calendars, which he continued to do until the following Thursday. Besides tying strings in calendars, he did nothing except sweeping up in the mornings.

There was, on the same floor where plaintiff had been at work, an apparatus used for cutting cardboard, and at that time used for trimming the edges of the calendars defendant was making. It consisted of a table about four and one-half feet long and three wide; on this table, about three inches from one edge, was fastened a lever, having a cutting edge, which was operated by hand. About half-past one on the 19 th of July, the plaintiff, then a boy within a few days of fourteen years, was told by Mr. Weber, the foreman of the room where he was working, to assist Mr. Seagrist, the cutter at this machine, by taking away the margins cut from the calendars the latter was trimming. He received instructions both-from the foreman and the cutter how to do this with safety, by taking away the strips while the knife was down. Plaintiff made no objection to this work at the time. ‘ After he had been at work for about an hour, the end of his left thumb was cut off by the knife Seagrist was operating. His own version of how it happened is as follows: “ I was sitting on a bench'; I was to throw the clippings into a box on the right side of me; here was the table, and I was sitting like this (indicating), a little sideways; I had to take them this way (indicating); I could only take them away with my thumb; that is, I would rest my thumb on the edge of the table and move them toward me, pass them to my right hand. * * * The foreman came over to me and asked me how I would like this. I told him I was afraid of it, and he told me I had to work at it until he gets another boy, and within that time my finger was cut off, just while I was talking to him. * * * He (the foreman) came over to me, and said to me how do I like that work. I told him I didn’t want to work at it, because there were too many boys went away from it, and he said I would have to stay until he gets another boy. Within that time I lost my finger.’’ This is absolutely all the evidence as to how the accident happened, and at the close of plaintiff’s case the court, on defendant’s motion, dismissed the complaint, and, we think, properly.

We do not think there was any evidence of negligence on the part of the defendant to be submitted to the jury. There is no proof that the cutting apparatus was a dangerous machine; the only thing, like machinery about it was the counter-poise, a simple weight, which drew up the knife after each cut and held it there until the operator wished to make another cut. There were no pulleys, bands or gearing attached to it to get out of order; it was operated not by steam or electric power, but by hand. Its method of operation was simple and obvious; the knife wont down slowly, and in full view of the plaintiff; in fact, the apparatus was little more of. a machine than a carving knife or a handsaw, and was just as much under the control of the operator as either of them, and about as dangerous to others as these instruments. There is no proof that the foreman, Weber, or the cutter, Seagrist, were not fully competent to perform their respective duties, or that the apparatus was out of order or worked irregularly or unexpectedly. Respondent was not an insurer of its employes, and was not required to guard against unforeseen accidents. It was not necessary that defendant or its servants should warn plaintiff that the knife would cut if he put his finger under it, for that was as apparent to him as to them, and, in fact, he says he knew this. Whatever there was of danger or risk he, a bright boy of nearly fourteen years, could see and appreciate as well as an adult. Tucker v. N. Y. C. & H. R. R. R. Co., 124 N. Y., 317; 36 St. Rep., 272; citing, among other cases, Nagle v. Railroad Co., 88 Penn., 35, and as far as the danger was known and obvious to him he was as legally responsible for his own protection as a person of full age. Hickey v. Taaffe, 105 N. Y., 26 ; 6 St. Rep., 426; McCarragher v. Rogers, 120 N. Y., 526 ; 31 St. Rep., 595. There is no proof whatever that Seagrist, the cutter, saw the dangerous position of plaintiff’s thumb in time to avoid the accident, and if he had and did not, it would have been the carelessness of a fellow, workman, and would not have made the defendant liable, such carelessness being one of the risks every employe assumes when he enters upon any business or employment.

It is manifest, however, that the accident occurred, not by reason of any defect in the machinery, or Seagrist’s carelessness, but because the foreman, Weber, by speaking to plaintiff, distracted liis attention from his work. But we do not think this fact renders the defendant liable. The foreman was not the alter ego of the master and did not stand in its place for any such purpose. It is clear the inquiry was personal to the foreman, and made because he was interested in the lad; he was acting within his own direction. The risk of such distraction (if any) was one the plaintiff assumed when he entered upon the employment. Geoghegan v. Atlas Co., 51 St. Rep., 868; Cullen v. Norton, 126 N. Y., 1; 86 St. Rep., 359; Loughlin v. State, 105 N. Y., 159; 6 St. Rep., 826; Butterworth v. Clarkson, 52 St. Rep., 9; Crispin v. Babbitt, 81 N. Y., 516.

But even if the foreman had been the master for such purpose, theplaintiff absolutely failed to show how the accident happened by reason of the foreman’s speaking. It is not claimed that he spoke suddenly, or in a loud or threatening manner, so as to startle him ; on the other hand, the inquiry itself was a friendly one. Besides, it was his own act in keeping at work while talking, and not stopping as he should have done. If a master is to be held liable merely because its superintendent or other representative speaks to an employe, no direction, however urgent, could be given to a servant, without first asking him to stop work: but' even asking him to do this might distract his attention, and thus make the master liable.

Appellant contends that the refusal of the foreman to permit the plaintiff to stop work at once upon his saying he “ was afraid and didn’t like to work on it,” rendered the defendant liable, and that he was acting out of a constrained acquiescence in the master’s requirements. As before stated, we do not think the foreman was acting for the master in making the inquiry and refusing the request, but within his own discretion; but, if he were acting for the master, it is impossible for us to understand how this refusal caused the injury, as the refusal and the accident were, according to plaintiff’s testimony, coincident. Suppose the foreman had said, “ Well, my lad, if you do not like the work, you may stop at once and go back to stringing calendars,” instead of what he did say, is there the least probability the accident would not have happened ? The one expression would have taken as long a time to utter as the other, and while in the act of refusing the accident happened. It would appear, therefore, that neither the refusal nor the supposed restraint had anything to do with it. The foreman himself would not have been liable under such circumstances. It was no more than the expression of his intention ; but an intention not carried out is no more ground fora cause of action than a direction not acted on. Therefore, we think there was no question of negligence on defendant’s part to be submitted to.the jury.

On the other hand, there is no evidence that plaintiff was free fi’om contributory negligence, and considerable evidence that he was not. The plaintiff was sui juris at the time he was injured (see authorities first cited), and knew as well as the foreman and the cutter, the danger, if any there was, yet he worked for an hour without complaining of it, instead of stopping work as he should. Even when addressed by the foreman he did not stop work or look where he was putting his hand. He had no occasion to put it, or any part of it, under or over the knife, which was in plain sight. An employe, in accepting and continuing in service, with a knowledge of the character and position of machinery, the danger of which is apparent, and from which he may be liable to receive injuries, assumes the risk incident to the employment, and the fact that he is a minor does not relieve him from this rule, only the risk assumed must be measured by the care proper to his age and condition. See authorities above cited and Schmidt v. Cook et al., 53 St. Rep., 84; Oszkoscil v. Eagle Pencil Co., 25 St. Rep., 925; Buckley v. Gutta Percha, etc., Co., 113 N. Y., 540 ; 23 St. Rep., 618. From all the evidence in the case we do not understand why it was necessary for the plaintiff, who was right handed, to use the left in any way to remove the clippings, or why he could not have done all that was required of him by one motion of his right hand and arm. On a case like this the plaintiff must show not only negligence on the part of the defendant, but that he was free from it, and the burden of both is upon him. Wiwirowski v. R. R. Co., 124 N. Y., 425 ; 36 St. Rep., 405; Weston v. City of Troy, 54 St. Rep., 493.

The complaint in this action sets out the recovery of judgment in an action by plaintifPs father for loss of services by reason of the accident here complained of, which was not denied by the answer. Upon the trial he offered the judgment-roll in the father’s action “ as an estoppel by record; ” the court excluded it, and the plaintiff excepted. He then offered the roll as some evidence of the fact that the injury was caused solely by reason of the negligence of the defendant; ” the court again excluded it, and the plaintiff excepted. We think both rulings were correct. The judgment in favor of the father could not be “some evidence of negligence” unless it were conclusive evidence. If it were conclusive evidence, it operated by way of estoppel, and estoppel, to be effectual, must be mutual. Booth v. Powers, 56 N. Y., 33; Collins v. Hydorn, 135 id., 320, 323, 325; 48 St. Rep., 370. The case last cited holds that a judgment against a party, in his representative capacity as an assignee for the benefit of creditors, does not conclude him in an action brought in his individual capacity, although the same questions are involved in both actions. And in Rathbone v. Hooney, 58 N. Y., 467, it was held that a judgment against a party, sued as an individual, is not an estoppel in a subsequent action for the same cause in which he sues or is sued in another capacity or character (citing many authorities).

The same point substantially was decided in Landon v. Town shend, 112 N. Y., 93 ; 20 St. Rep., 223. There can be no redress unless there is privity of property, parties, estate or heirship, between the plaintiff and his father, as to this cause of action. Bigelow on Estoppel, 130, 131,. 5th ed.; Wells on Res Adjudicata, § 21; Collins v. Hydorn, supra; Neeson v. City of Troy, 29 Hun, 173; Groth v. Washburn, 39 id., 324. Here there was no such privity. The father sued for the loss he claimed to have sustained, while in that action the son seeks to recover for himself the damages he claims to have sustained. Anderson v. Third Ave. R R Co., 9 Daly, 487, was decided on a motion to strike out part of a complaint, and can be regarded as an authority on that subject only. And, in the light of the authorities cited, it may well be doubtful whether it can be- regarded as controlling, even on the question then under consideration.

The judgment should, therefore, be affirmed, with costs.

Bischoff and Pryor, JJ., concur.


text:
    William J. Brewster, Resp’t, v. George H. Wooster, App’lt.

      (New York Superior Court, General Term,

      Filed December, 1893.)

    Appeal—Dismissal.
    The subsequent plea of the recovery of a judgment as a bar to another action is not inconsistent with the prosecution of an appeal from such judgment.
    Plaintiff recovered a judgment against the defendant for $22,559.05. The defendant appealed from the judgment and thereafter obtained leave to interpose a supplemental plea in bar to another action setting up the recovery of the judgment. The plaintiff thereupon moved to dismiss the appeal on the ground that by the supplemental plea the defendant _ had taken a benefit from the judgment which estopped him from disputing its correctness.

      Arnoux, Riich & Woodford, for motion.
   Per Curiam.

The authorities on which the respondent relies in support of the motion to dismiss the appeal all rest upon the proposition that a party cannot do any act inconsistent with his appeal and yet claim the benefit of the appeal. The case before us does not fall within the reason of this rule. Appellant's plea in another action, of the recovery of the judgment in question, is not used as a weapon, but as a shield. It is based upon the maxim that no man should be twice impleaded for the same cause of action. It is a plea in bar, and not in estoppel. As a plea in bar it is not inconsistent with the prosecution of the appeal.

The motion to dismiss the appeal should be denied, with ten dollars costs.