text:
    James McDonald, Resp’t, v. New York, Chicago and St. Louis Railroad Company, App’lt.

      (Buffalo Superior Court, General Term,

      Filed July 30, 1895.)

    1. Evidence—Opinion.
    In an action for personal injuries, an hypothetical question, which fairly presents plaintiff’s theory and is justified by her proof, is properly put to a medical expert.
    2. Same.
    Where the evidence supports the question at the time it is propounded, but evidence, subsequently admitted, renders it improper, the remedy is either by motion to strike out or by a request that the jury be directed to disregard it.
    8. Same—Opinion.
    In an action for personal injuries, the evidence of the physical condition of plaintiff, with opinions of physicians as to whether such condition could have resulted from the accident, is admissible.
    Appeal from a judgment, entered on a verdict in favor of plaintiff.
    Rogers, Locke & Milburn and L. L. Babcock, for app’lt, Walter S. Jenkins, for resp’t.
   Hatch, J.

The points presented by this appeal relate to exceptions taken to the ruling of the court admitting certain testimony, and an exception to the court’s refusal to charge as requested. The testimony of the plaintiff and her aunt tended to establish that, while riding as a passenger in defendant’s train, while in motion, it came in collision with the rear end of a freight train on defendant’s road, and the sudden stoppage occasioned thereby threw the plaintiff.forward, and then backward, the latter motion causing her back to come violently in contact with the arm of the seat in which she was sitting, inflicting the injuries complained of. Respecting the injuries received, the plaintiff, her aunt and mother, testified that they observed, shortly alter the injury, lumps upon her spine in the small of the back, which were discolored and tender; that they remained at the time of the trial, but were not then as large ; that her general health before the accident was good. It further appeared that, about a month alter the accident, a physician was called, who made an examination and prescribed for her. He was called as a witness, and testified to the examination which he made, and stated what he discovered, but was not then interrogated respecting the lumps upon the back, and gave no testimony concerning them. After describing her condition and what he discovered, he was asked by plaintiff’s counsel : “If her health—her general health—so far was good, before this accident, if she had been thrown forward in the car and struck with force enough so as to occasion considerable pain across her chest, and then thrown back so as to strike her back on the arm of the seat and occasion some considerable pain and some lumps upon her spine, would you say that did or did not tend to occasion this nervous condition?” Defendant objected, on the ground that the question embodied only a partial statement of the facts. The objection was overruled, exception was taken, and the witness answered : “I should think that would cause this condition.” As the testimony stood at this time, we think that.this question fairly presented plaintiff’s theory, and was justified by her proof. Filer v. Railroad Co., 49 N. Y. 46. Subsequently it appeared, by the testimony of this and other physicians called by plaintiff, that the lumps were not pathological or anatomical, but natural, and one of the physicians stated that the lumps were simply a callous caused by tight-lacing. Plaintiff and the other witnesses before notice were not further interrogated upon this subject, and the testimony remained in this condition. Claim is now made that error was committed, as the uncontradicted evidence is that these lumps were not occasioned by the accident. This claim is not supported by^he evidence. It is true that the physician say, practically, that there was no connection between ‘ the lumps and the injury, but this is not in harmony witlr the other testimony, which is to the effect that, shortly after the injury, they were discovered, were then discolored, tender, and larger than at the time of the trial. At the most, the record then presented contradictory testimony upon that subject, and the jury were at liberty to accept either version. But, if it be conceded that the testimony of the physicians is the correct version, defendant is not aided. At the time when the question was propounded and answered, the testimony of the physicians in this regard had not been given; the evidence then supported the question propounded ; and, as we have seen, the ruling was proper. If defendant desired to have the element of lumps removed from the consideration of the jury, it became incumbent upon it to in some manner call the court’s'attention to it, either by motion to strike out or by a request that the jury be directed to disregard it. Platner v. Platner, 78 N. Y. 90; Pontius v. People, 82 id. 347. Neither motion to strike out nor request to disregard was made, upon the record. Therefore the question was proper, and the answer competent, and nothing which happened changed its standing. Nor are we able to see that defendant was prejudiced by anything which occurred in this regard \ for the court in its charge called the jury’s attention to the testimony that the lumps were occasioned by wearing corsets, and made no mention of the other testimony already adverted to, but left the question for the jury to determine what injuries she sustained as the direct result of defendant’s act, after a careful review of defendant’s testimony, and this feature of plaintiff’s proof. This left (the case in this regard as favorable to defendant as it had the right to ask.

It also appeared by the testimony of the physicians that an examination was had of plaintiff’s person about three months after the accident, when there was discovered a slight lateral curvature of the spine. Dr. Orego, who made thé discovery, and to whom the hypothetical question was propounded which we have just examined, was asked, immediately after his answer to it: “What would you say as to this curvative of the spine being caused by that or not?” Defendant objected to the question, “as inadmissible and pure speculation on the facts as presented here.” The court overruled the objection, exception was taken, and witness answered : “It might be caused by . these conditions.” Defendant’s counsel moved to strike out the evidence, “as not within the line of presumable evidence, and as a medical opinion.” No ruling appears to have been made upon this motion. He was then asked: “ If she had no curvature of the spine before this accident, and had received the injuries I have described in my former question, what would you say as to whether that curvature was necessarily caused by that injury or not? This was objected to, on the ground that it is assuming a state of facts not proven, and also that facts bearing on it were admitted. The objection was overruled, exception taken, and witness answered: It might be. That is the best I could answer. I could not answer any more definitely.” The witness was then asked as to the probability of recovering good health, and answered that, under proper treatment, she would recover in three or four years, and further stated that he did not discover any curvature of the spine when he first examined her, and that he then made a sufficient examination to discover it if it had then existed. He was then asked: “ What does that indicate as to whether this curvature is the result of these injuries or not?” This was objected to as calling for a conclusion and for an opinion without proper basis. Objection was overruled, exception taken, and witness answered: “I think it was due to that injury. And the -fact that the curvature is more pronounced now than on my former examination in January indicates that it was the result of an injury, as it has increased.” Motion was made to strike out the answer, which was denied, and exception taken. It further appeared by the testimony of this and the other physicians that it was not an uncommon thing for women in the growing period to have curvature of the spine without the intervention of any accident at all; that it is due to other conditions, rather than injury, and more frequently come in that way than from accident; that they generally arise from general habits of life and debility. Dr. Phelps testified : “ It is reasonable to suppose that the accident had something to do with it, although cases of curvature occur without accident.'' Dr. Daniels said: “ Doctors meet with it frequently. It is a common thing to find the spine slightly out of line, without any accident causing it. * * * It may be due to any one of numerous causes in the development of the human body during its growing period.”

In submitting the case to the jury, the court charged, upon request of defendant, that if the jury find that tlie curvature might probably have resulted from other causes than this accident, then they should disregard the claim for any damages on account of such curvature; that they might properly find that such curvature resulted from other causes than this accident; that they must be satisfied by a reasonable preponderance of evidence that the injury to the spine was the result of the accident—and refused to charge, upon request, “that there is no evidence from which the jury can probably find that such a curvature of the spine resulted absolutely from the accident at Silver creek.” Defendant excepted to the refusal to charge. It may be, as argued, that the objections were not sufficiently specific to raise any question. However this may be, the request to charge is sufficient to present it, and defendant now claims that the verdict is large by reason of the fact that the jury considered the curvature of the spine as connected with the accident, while in fact the evidence was speculative and furnished no basis for such consideration, and that the court erred in not withdrawing the question from the jury. The basis for this claim rests upon the decision of the court in Strohm v. Railroad Co., 96 N. Y. 305, and Tozer v. N. Y C. & H. R. R. Co., 105 id. 617; 6 St. Rep. 447. We are not left in doubt concerning the correct construction of these decisions, and their limitations. In Turner v. City of Newburg, 109 N. Y. 301; 15 St. Rep. 93, the court said: “It is perfectly competent to furnish the jury with evidence of the present physical condition and bodily sufferings, and with the ópinions of competent physicians as to whether such could have resulted from the accident, and as to their permanence." In speaking of the, Slrohm Case, it says it “simply precludes the giving of evidence of future consequences which are contingent, speculative, and merely possible as the basis of ascertaining damages.” The rule was again reiterated in Griswold v. N. Y. C. & H. R. R. R. Co., 115 N. Y. 61; 23 St. Rep. 729; McCain v. B. C. R. R. Co., 116 N. Y. 459; 27 St. Rep. 549; Wallace v. Vacuum Oil Co., 128 N. Y. 579; 38 St. Rep. 441; Keane v. Village of Waterford, 130 N. Y. 188; 41 St. Rep. 291. These authorities are ample in answer to defendant’s contention. No error is found in the record.

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


source: Caselaw Access Project

author: Hatch, J.

license: Public Domain

text:
    Detroit White Lead Company, App’lt, v. Frank A. Knaszak, Resp’t.

      (Buffalo Superior Court, General Term,

      Filed July 30, 1895.)

    Evidence—Sale—Breach of warranty.
    In an action to recover the price of goods sold, evidence that the defendant resold the goods, that they were worthless and that defendant suffered damages thereby, is not admissible to sustain a defense of the breach of warranty, where the plaintiff bought the goods for his own use, and in the absence of proof that he knew that defendant was in the habit of selling such goods.
    Appeal from a judgment in favor of defendant.

      Moses Shire, for app’lt; Philip A. Laing, for resp’t.
   Hatch, J.

This action was brought to recover a balance remaining unpaid on the purchase of a quantity of white-lead paint. The answer admitted the purchase, that the balance remained unpaid, alleged a breach of warranty in the sale, and damages thereunder, for which judgment was asked.

Defendant carried on the business, at Buffalo, of painting houses, and selling paper, paints, oils, and supplies to other parties to be used in painting houses. The dealing between the .parties began in 1889 in a small way, but it appears, that but little, if any, white lead was sold prior to 1890, and the sale at which the claimed warranty was made was either in that year or the next. Plaintiff denied breach of any warranty, and claimed that the goods which it sold were of a character with which defendant was familiar, and such as he ordered. The evidence to establish the warranty came from the defendant and his wife, both testifying that plaintiff represented the article sold to be strictly pure white lead. It was admitted that the article was not such in fact, but was an article of much lower grade. Defendant testified 'that in making the purchase, and as a part of the contract, he stated to plaintiff that he “ wanted this lead to use for his own use for house painting.” And on cross-examination he said: “I recollect Chase’s lead, for I bought it .purposely for my own use, because it was guaranteed.”' And the statement in counsel’s brief for defendant is: “ This lead was bought for a special purpose.” Defendant offered evidence to show that he sold the lead so purchased to other parties, who used it; that it proved worthless; and that thereby he lost trade and custom, and suffered much damage. This evidence was received under objection and exception, and much testimony was given thereunder tending to establish the claim. The court found that the lead was graded lead; that plaintiff warranted the lead to be pure white lead, and that defendant relied upon such warranty in making the purchase.

The sixth finding is:

“ That, when the plaintiff sold and delivered graded leads to the defendant, * * * it knew that the defendant intended to use such graded leads in the preparation of paints for dwelling houses and other buildings, and that he intended to sell the same to his customers for the same purpose.”

This followed by findings that defendant used the lead in his own business, and sold it to others ; and that it was unfit, unsuitable, and improper for use; that, in consequence of sale to his customers, he lost them ; that they refused to trade with him on account thereof, and that he suffered in reputation and loss of custom. And on account of all the matters it is found that he suffered damages in the sum of $1,250.

I am of opinion that the sixth finding and those following, dependent thereon, are not sustained by legal proof. The rule of law defining what may be considered to be the proper measure of damages'in actions of this character is reasonably well settled, although its proper application to particular cases is quite likely to T>e attended with difficulty. Damages which may bé awarded are such as the parties may fairly be supposed to have had in contemplation, when the contract was made, as reasonably following its violation. Judge Earl said:

“ The damages must flow directly and naturally from the breach of the contract, and-they must be certain both in then1 nature and in respect of the cause from which they proceed.” Rochester Lantern Co. v. Stiles & Parker Press Co., 135 N. Y. 209; 47 St. Rep. 842.

Such damages as are uncertain, contingent and speculative are rejected. What will be considered as within the fair contemplation of the parties must be the natural accompaniment and the proximate result of the violation of the contract. U. S. Trust Co. v. O'Brien, 143 N. Y. 284; 62 St. Rep. 336.

Where goods are sold for a particular purpose, the damages are such as flow naturally from the use of the article for the particular purpose, in consequence of which the rule for damage is much more liberal than when sold for general purposes. In applying the law to such a case, FOLLETT, J., said:

“ This broader rule rests on the theory that the vendor, having sold the articles with the knowledge that they were purchased for a particular purpose, should be held liable for such damages as naturally flow from the breach of his contract, and which he, or any reasonable man, might apprehend would follow from the breach.” Swain v. Schieffelin, 134 N. Y. 471; 47 St. Rep. 910.

The natural result of such a sale would seem to be that the article, being sold for the particular purpose, would be used for it, and that such use would be the only use in fair contemplation of the parties. It can scarcely be claimed that, when parties so contract, it could reasonably be said that a general use was contemplated, when only a special use was contracted for. The sale here was for the special use of defendant. His language excluded any idea that he purchased the paint with any expectation of a resale to others. He said that he-wanted it for his own use, ■—a particular purpose. He so told plaintiff. How could plaintiff, then, suppose that theie was any liability that he would sell to others, and thus destroy his trade? How could it suppose that any loss of custom would result when informed that the article was for defendant’s personal use? If de'endant had used the article himself, it could not be said that he would have lost any trade or custom on account of it. Loss of trade and reputation could only come through his dealings with others, and when that did not enter into the contract how could the parties be said to contract having it in contemplation ?

If special damages are only allowed when the article is sold with knowledge that it would be used for a particular purpose, it would seem to be equally reasonable to say that it excludes any damage which could only arise if the special purpose be departed from. It is true that to some extent the defendant dealt in the article which he purchased, but there is nothing in the case showing that plaintiff hád knowledge of such fact, except the inference which arises from the fact that he was at defendant’s place of business. Defendant’s description of his business is that he was a house painter and contractor of house painting, and had a wall paper store, and kept a store, and sold paints, oils, and papers; but that his business consisted chiefly in outside painting, which he did himself and with employes, twelve to sixteen in number ; that he also sold goods to contractors. To what extent plaintiff had notice of defendant’s business and its character the case is silent, and, in the absence of proof, it is quite as. reasonable to say that he only had notice of what defendant chiefly did as to say that he had notice of the incidental branches connected with it. There is not sufficient of this evidence to say that plaintiff had notice that defendaut intended to sell the paints sold to others, or that plaintiff was bound by consequences if he did so, when defendant’s version is that he contracted for a particular use, understood by plaintiff.

We reach the conclusion, therefore, that the objection made to the reception of evidence showing loss of custom should have been sustained, aud the evidence excluded. With this evidence excluded, there is no testimony to support the finding. And, as such finding entered into the consideration upon which the recovery was awarded, it follows that there is no basis to sustain the judgment rendered in this respect.

The judgment should therefore be reversed, and a new trial ordered, costs to abide event.


text:
    William Schultz, App’lt, v. Simon Cohen, Resp’t.

      (Buffalo Superior Court, General Term,

      Filed July 30, 1895.)

    1. Pleading—Statute of frauds.
    Where the invalidity of the contract sued upon does not appear upon the face of the complaint, it is incumbent upon the defendant to plead the statute of frauds as a defense, or be held to have waived it.
    3. Same—Original undertaking.
    A promise by the owner of the building to pay the subcontractor, who has refused to proceed by reason of the contractor’s failure to pay according to the contract, if he would go on and finish the work, constitutes an original undertaking on the owner’s part to pay the subcontractor in accordance with the terms of the contract.
    Appeal from a judgment, dismissing the complaint.

      Vlinion B. Gibbs, for app’lt; Willard Saperstone, for resp’t.
   Hatch, J.

The only question presented bjr counsel for the court’s consideration on this appeal is that the contract sued upon is void by the statute of frauds. The complaint sets forth a cause of action for materials furnished, and work, labor, and services performed by plaintiff for defendant, at his request, in and about the building of a house at 23 Union street, in the city of Buffalo. The answer is a general denial. Upon the trial, defendant sought to amend his answer by a plea of the statute of frauds. This was denied, and the case is therefore to be disposed of on the issue as originally framed. The invalidity of the contract sued upon did not appear upon the face of the complaint. It- was therefore incumbent upon defendant to plea the statute as a defense, or be held to have waived it. Wells v. Monihan, 129 N. Y. 161, 41 St. Rep. 409; Crane v. Powell, 139 N. Y. 379; 54 St. Rep. 659.

If the plea had been interposed, it would not have availed defendant, as the contract proved upon trial was not obnoxious to the statute. The proof showed that plaintiff had contracted with a third party to do plumbing work in defendant’s house. This contract was partly performed by plaintiff, when it was violated by such third party, in omitting payment according to its terms. Thereupon plaintiff refused to prosecute the work thereunder. Defendant applied to him to finish the work, and said to plaintiff ‘•I should go ahead, and finish, and he’ would pay me.” Thereupon plaintiff went on, and completed the work. The effect of this was to constitute an original undertaking on defendant’s part to pay plaintiff in accordance with the terms of the contract. King v. Despard, 5 Wend. 277; Devlin v. Woodgate, 34 Barb. 252; Quintard v. De Wolf, id. 97; Mallory v. Gillett, 21 N. Y. 422.

The judgment should therefore be reversed, with costs.

All concur.


author: Titus, C. J.

text:
    Frank Schlee, Resp’t. v. New York Central and Hudson River Railroad Company, App’lt.

      (Buffalo Superior Court, General Term,

      Filed July 30, 1895.)

    1. Evidence—-Negligence.
    In an action to recover for personal injuries, the evidence of physicians as to the plaintiff’s physical condition and general health after the accident hears upon the character and extent of the injury received, and is admissible. .
    2. Negligence—Questions op pact.
    The questions of negligence and contributory negligence, in an action to recover for personal injuries, were held, under the evidence in this case, to have been properly submitted to the jury.
    Appeal from a judgment in favor of plaintiff.

      McMillian, Gluck, Pooley & Depew, for app’lt; Humphrey, 'Lockwood ■& Hoyt, for resp’t
   Titus, C. J.

This is an appeal from a judgment and order denying defendant’s motion for a new trial. The plaintiff was injured while crossing the defendant’s railroad tracks at Montgomery street in this city. The facts are somewhat peculiar. The plaintiff was driving a team hauling dirt from Monroe street, and dumping it. into Clinton street, and necessarily crossed the tracts of the defendant at Montgomery street or Oneida street. The plaintiff’s evidence tends to show that box cars and other cars were standing on the track which he crossed before entering the track upon which he was injured, and in some degree obstructed his view in the direction from which the train was approaching; that no signal was given either by ringing a bell or sounding a whistle; that the train was going at from eight to ten miles an hour. When he got onto Montgomery street he looked for a train, and saw nothing, and passed along the street, between the cars on either side, and when he passed the track on which the box cars stood he looked and saw the train coming, but his horses were then on the track, it was too late to stop or back off, and he hurried them across,, and the engine struck the rear portion of the wagon, threw him up into the air and between the tracks, where he lay for some minutes in an unconscious condition. He was placed‘on the train and taken to the defendant’s depot, an ambulance was called, and he resisted the attempt of the employes to put him into the ambulance, and absolutely refused to go, and used vile and abusive language, to those around him. He was then arrested by the policeman in the depot, taken to the police station, and kept there until the next morning, when he was fined five dollars for being drunk and disorderly, and sent to the penitentiary. The next day his employer went to the penitentiary, paid his fine, and took him home, where he remained for some weeks, unable to do anything. He was dizzy at times, and on two occasions, in attempting to-drive his teams, fell from the wagon, and once fell downstairs. The defendant’s witnesses claim that he acted like a drunken man, and one of them says he smelled liquor when near him, and that he was drunk. The plaintiff himself denies that he was drunk. He claims that he had drunk but two glasses of beer that day, that he has no knowledge of what occurred after the accident until he found himself in the penitentiary. Other witnesses say that he was not drunk, and showed no signs of having been drinking. It is claimed that his conduct was caused by the injury received in the collision

The case was submitted to the jury under a fair charge by the court, and they awarded him a verdict. It is now claimed by defendant’s counsel that there was no evidence to submit to the jury on the question of the defendant’s negligence or the contributory negligence of the plaintiff. We think there was evidence from which the jury could properly find both of these questions in favor of the plaintiff, and that no error was committed by the court in submitting the question to the jury. Ho exceptions were taken to the charge of the court, and the learned counsel does not on this appeal claim that any available error was committed in the charge, but he insists that the court was in error in admitting evidence under his objection, for which a new trial should be granted. I have examined the exceptions taken, and do not think that reversible error can be predicated upon them. The evidence of the physicians as to his physical condition and general health after the accident was a proper subject of inquiry as bearing upon the character and extent of the injury received, and properly admitted. These are the only exceptions that seem to merit any notice, and do not warrant a reversal of the judgment.

The judgment and order appealed from should be affirmed, • with costs.


text:
    Charles A. Adolff, Resp’t, v. Catharine Schmitt, App’lt.

      (Buffalo Superior Court, General Term,

      Filed July 30, 1895.)

    Pbincifal and agent—Undisclosed.
    Where a vendor does not know the real owner of the business, in which the goods which he sells enter and are disposed of, he may, when he dis covers the fact, bring an action against the true owner, even though the agent claims to be the real owner.
    Appeal from a judgment of plaintiff.

      A. J. Hibbard, for app’lt; Stroebel & dory, for resp’t.
   Titus, C. J.

The defendant is the wife of Henry Schmitt She is the owner of the premises, fixtures, and everything in the house at 992 Broadway, in this city, and has been since May, 1892. She has made application each year since that time to the board of excise for a license to sell strong and spirituous liquors at her place, and taken a license in her name, and paid for the same. She also paid the special tax to the internal revenue office, and took a receipt in her name, and for a time conducted the business herself. Her husband, Henry Schmitt, had his sign over the door for a greater part of the time since 1892, and has been in the saloon, managing the business as though he was proprietor, buying liquors, and selling the same over the bar. He had no license to sell liquor in his name, and whatever was done by him in the business was done under the license held by his wife, the defendant. The plaintiff in May, 1892, and since that time, has sold liquors to Schmitt, gave him a pass book, and supposed he was the owner and proprietor of the business, and did not learn anything to the contrary until some time before the commencement of this action against the defendant. In the applications for licenses during this period the defendant states that she is the only person actually beneficially interested a§ owner and engaged in the business aforesaid in which said licenses were granted. The defendant was living in the house, with her husband, where the business was canned on, and spent a portion of her time in waiting upon customers. The business was carried on and all the bills for goods were paid cut of the profits earned in the selling of liquor. The husband, however, claims that the business is his, and not the defendant’s. There is considerable evidence in the case, but nothing which contradicts this statement of facts ; and the ease was submitted to the jury, and they found a verdict in favor of the plaintiff for the amount of his bill.

It is not clear how the husband can, as a matter of law', claim he only is liable to the plaintiff; for, according to his own statement, the defendant owned everything,—real estate, fixtures, and money, if there was any. Because he is there, managing the business, with the help of his wife, the defendant, it does not follow by any means that she was the real owner. If a judgment was obtained against him for his individual debt, there could be no question from the evidence but that the defendant’s property and the proceeds of the business could not be reached on an execution issued on such a judgment, for the reason that the property and business is hers, and not his. The plaintiff, not knowing the real owner of the business when he sold the goods, may, when he discovers it, bring an action against the true owner. But the fact that Schmitt claims to be the owner does not alter the case. He is undoubtedly individually liable to the plaintiff, because he did not disclose the real owner; but the principal is nevertheless liable as well. Meeker v. Clayhorn, 44 N. Y. 349; Coleman v. Bank, 53 id. 388: Kayton v. Barnett, 116 id. 625; 27 St. Rep. 678.

The court submitted the question of Schmitt’s agency to the jury on the evidence which warranted the verdict, and it is difficult to see how any other conclusion could have been reached. 1 think the judgment should be affirmed, with costs.


text:
    Mary Anna Huda, as Administratrix, etc., App’lt, v. American Glucose Company, Resp’t.

      (Buffalo Superior Court, General Term,

      Filed, July 30, 1895.)

    1. Master and servant—Means oe escape.
    A role, requiring the windows to be kept shut in order to secure a certain temperature, does, not forbid opening a window to escape in case of fire.
    2. Same—Risks.
    A servant, who works in a building, knowing that the windows are nailed down in order to maintain a temperature required by the character of the work, assumes the risks incident to such a state of affairs in case of fire.
    3. Same.
    No liability attaches to the master, where the work carried on produces the condition, and such condition is known, or the means of knowing it are furnished, to the servant.
    4. Same.
    The means of escape from a factory in case of Are were held sufficient in this case, and the owner not to be negligent in failing to provide sufficient means for his employes to escape in case of Are.
    Appeal from an order, setting aside the verdict in favor of plaintiff, and granting a new trial.
    The action arises out of the burning of defendant’s factory building, by which plaintiff’s intestate lost his life. The facts which may be considered as established by the verdict, and those conceded, are these: The factory was of brick, about 180 feet square and eight stories in height, wherein was carried on the conversion of corn into glucose. The north side of the building abutted on the Hamburg canal. The south side fronted on Scott street. This was called the “ Starch Building.” On the south side of Scott street, and directly opposite the “Starch Building,” was the “Feed Building,” so called, which was five stories in height. The buildings were connected by a bridge fourteen feet wide and two stories in height, connected with the starch building between the fifth and sixth stories. This bridge was reached from the latter building by six or eight steps going up from the fifth story, and down from the sixth story. There were three separate sets of stairs running from the ground floor of the starch building to the eighth story; and from the eighth story to the roof, two separate sets. The building was equipped with three fire escapes, consisting of iron ladders running from the roof to the ground, two of which were on the Scott street side;1 the third, on the north side, directly over the canal. Balconies on each side of the ladder were constructed at each story, extended sufficiently far to include two windows. These windows were about sixteen inches above the floor, were sufficiently large to allow easy passage to the balconies, and in the fourth, fifth, and sixth stories the frame of the windows was of light pine wood, ordinarily termed a “box frame." The sash was in two parts, with center mullion, and four panes of glass, sixteen inches square, in each sash. The whole was of cheap construction, and not very strong. No weights held them up, and, when raised, they were required to be propped. There were about twenty-six on each side of each floor. The upper floors of the building were used for depositing starch, which first came to the tables in a liquid form, from which the starch was precipitated. A uniform temperature of from eighty to eightjr-five degrees in the room was essential to the process. It maybe assumed that in all the stories above the fourth all of the windows was fastened down, so that they could not be raised, and defendant had caused to be posted notices about the building prohibiting the raising of the windows, and attaching the penalty of immediate discharge for its violation. The object of this was to maintain the uniform temperature required in the rooms. Plaintiff’s intestate liad been employed as a starch shovler in this building some twelve years, and was familiar with all the surroundings. The usual way in which the bulk of the men employed in the upper part of the building reached their respective floors was by entering the feed building, where they received their time checks, passing up the stairs to the bridge, thence across to the main building. They returned the same way, giving in their checks at the feed building. The building was lit by electricity, which was generated bn the ground floor. On April 12, 1894, at about 7 o’clock in the evening, fire was discovered in the dynamo room. It quickly communicated with the other parts of the main structure, cut off the electric light, generated dense volumes of thick smoke, and acid fumes from the materials used in the manufacture, which rapidly filled all parts of the building. The fire destroyed the main building first; was communicated to the feed building, and destroyed it. When the fire broke out, there were about twenty-two men in the upper stories, about one-half of whom failed to escape. It is probable that plaintiff’s intestate was on the seventh floor when the fire broke out, as that was the floor where he went to work when he entered the building. He was first seen, however, on the sixth floor, and, so far as his subsequent movements are known, the witness Lewandowski details them in these words: ‘"On the night of the fire I was at work on the seventh floor. I saw smoke coming up. It was growing dark. The lights went out about three minutes before I saw the smoke. One other man was working on the floor with me. Valentine Huda went down the steps with me. We were going down from the fifth to the fourth floor. Huda reached the fourth floor. I do 'not know what became of him from that point. I saw him after he got on the fourth floor. He was standing on the fourth floor about a minute. Q. What was he saying,—anything? A. Yes sir; he spoke. There was very much smoke on the fourth floor at the time. I lost sight of Huda within a minute after my reaching the fourth floor. I could not see him, because of the smoke that surrounded us. We were together, so we could get hold of one another. We were in reach of one another. This was while we were on the floor, not on the steps. I threw myself on the floor face down, towards the window because the smoke was choking me. I was then about three feet from the window. Three of us were there, and we broke the window out. One of the men with me was foreman, and the other man’s name was Mike. I got out of tho window by sliding down the foreman’s leg to the third floor. * * * Q At the time you left Huda on the fourth floor, you say the smoke was so thick you had to throw yourself on the floor to get out? A. It was not so thick and heavy as that yet. Q. How long did you stay there before you threw yourself on the floor? A. About a minute. Q. What were you waiting a minute for? A. I could not run away anywhere. Q. Why not? A. The shop was full of smoke. Q. This floor you speak of? A. Yes, sir.” On cross-examination that witness stated: “I first saw Huda on the fifth floor, and then we went down together from the fifth to the fourth floor. Q. Was Huda ahead of you ? A. He went down the same time. I was stopped from going any further by the smoke. When the foreman broke the window open, I was on the fourth floor. We broke a pane of glass the same time I threw myself down. They broke it, and then I threw myself down. I helped to break the window open, and after that I threw myself down on my face. After that I crawled along, and got hold óf the foreman’s leg out of the window.” Some of the men broke out of the windows at the fire escapes, and passed dowii in safety, and one or more found an exit over the bridge. It does not appear that any went to the roof, but all who reached the fire escapes or the bridge had little or no difficulty in making safe exit from the building.

      Parker & Alexander, for app’lt; Louis L. Babcock, for resp’t.
   Hatch, J.

The record is singularly free of conflicting testimony, and the questions presented may be disposed of on undisputed facts. The origin of the fire is not known, and while the complaint alleged negligence on the defendant’s part, in its origin,, such claim was abandoned upon the trial, and is not now urged. It is also conceded that the fire escapes were sufficient, and that no-liability can be predicated upon the failure of compliance with any statutory duty in that regard. The court below in its submission of the case, authorized the jury to say whether or not the fastening down of the windows made egress by them difficult, and if so, did this impediment prevent deceased from leaving the building,, whereby he lost his life? Claim is now made, and pertinaciously argued that this proposition presented a question of fact for the jury and that their finding upon it ought not to have been disturbed. The rule at common law did not require that the owner of a building was bound to anticipate its possible destruction by fire, where from the use to which it was put, or its location, it was not peculiarly exposed to danger from that source, in consequence of which the usual and ordinary mode of ingress and egress furnished by doors, stairs, halls, and window's might reasonably be deemed sufficient, and if the building was properly constructed the owner was not bound to take extraordinary precaution to prevent a possible injury by burning. Pauley v. Steam G. & Lantern Co., 131 N. Y. 90; 42 St. Rep. 636; Jones v. Granite Mills, 126 Mass. 84. This rule is not contended against, but the claim is advanced that by constructing the fire escapes and means of access, defendant lulled the deceased into fancied security, and made his position dangerous by fastening down the windows so they could- not be raised, and thus obstructed the means of escape. We think the view cannot be upheld by anything which appears in the case. Is it true that there was any obstruction to the fire escapes ? Assuming that the windows above the fourth floor were screwed down, we are unabled to see that it constituted such an obstruction as violated any obligation which defendant owed deceased. The windows themselves were frail of structure, and must have been easily broken out by a blow, and undoubtedly quicker than they could be raised and propped up. The evidence abundantly establishes this. Mroz states that he broke out the windows, with his shoes, and jumped. Hall ran down fom the fifth to the fourth floor; started to go further down, when he saw smoke coming up; came back,kicked out a window, and went down the escape. Adamslci reached the fifth floor, when he was forced back by the smoke,, knocked out a window found location of fire escape, went to window opposite, knocked it out, and went safely down. He was followed out of the same window by Ignazak. It does not appear that any of these men were delayed at the windows, or that they had any difficulty in effecting an exit. It is quite plain to be seen that the windows could not withstand a sharp blow or kick, and it is equally clear that either could be delivered as quiclcly as the windows could be raised. Indeed, Eadki, who reached the third floor, said that he kicked out the window, and went down the escape; that he. did not try to lift it up, for want of time. Hall states that he did not try to open the window, but kicked it out. This testimony, and the character of the structure-sufficiently indicate that the fastening of the window furnished no more obstruction to reaching the escape than if it had not been fastened; for the emergency of the situation drove these men to the more speedy method of breaking out, instead of attemping to raise it For the latter, as was said, there was no time. No one who reached the escape was turned back, or prevented exit, on account of the fastening. ' It is said that the men were forbidden to break the windows, and consequently were deterred from doing it, or that an inference can be drawn that such was the case. There is no evidence of such fact, and it would be stultification of mediocrity to say that a notice evidently referring to the conduct of the business in the usual way interposed to constrain men to be burned up rather than break out a window. It could convey no such meaning when the building was burning, and ho inference can arise that it could, to any person.' Inferences that may be drawn are such as are reasonable. So far as the fourth floor is concerned there is no evidence that the window through which Lewandowski passed was fastened down, nor is there any evidence that if it was the men were delayed a single moment in effecting an opening. Those who broke it out were sworn, but they do not say whether the window was fastened or not, nor do they speak of any delay on account of it, nor is there a particle of evidence that deceased tried to reach the window. Lewandowski was three feet away when he threw himself on his face. He reached the window, and went at. After him came Jozwiack, who reached the window later. Deceased was not there, nor is it shown that he attempted to reach it, although he stood near Lewandowski. Proof stops here, and conjecture begins. We may say-that he was overcome by the smoke and acid fumes, or that he turned away, and fell down the stairs, or that he was confused, and went another way. But of proof there is none that he was prevented from reaching the window on account of delay in opening it, created by a fastening of which no proof exists, and of delay of which no one speaks. Conjectures of this character were condemned in the Pauley Case. As is expressed in one opinion, there is “food for speculation,” but “the law demands proof.” Bond v. Smith, 113 N. Y. 378; 22 St. Rep. 666. What we do know is that Huda did not reach the window. Another did after Huda’s companion had. This is all we know. The route by the bridge was open, the way to the roof unobstructed, and the windows at the escapes easily passed. We think this condition complied with the common-law obligation resting upon defendant, within the authorities cited, and that negligence cannot be predicated thereon.

If we say that the fastening was an obstruction, plaintiff is not assisted. Deceased had been at work in the factory for over twelve years. He was therefore familiar with the methods used, and his surroundings. All the witnesses who were called by plainiff were men engaged in the same general employment, and they each testify that the windows were fastened down, to their knowledge. Huda, from his length of service, the general knowledge of the men, the necessities of the business, and the process of manufacture, must be presumed to have known, or possessed the means of knowing, what was the common knowledge of all. The condition being known, the risk of the situation was assumed. Crown v. Orr, 140 N. Y. 452; 55 St. Rep. 834, where it is said, “If he voluntarily entered into or continues in the service, without objection or complaint, having knowledge or the means of knowing the dangers involved, he is deemed to assume the risk, and to waive any claim for damages against the masteri,n case of personal injury to him.” There is no exception to this rule, but there are distinctions of fact not always entirely clear. To risks which the servant does not assume are pointed out in McGovern v. Central Vt. Railroad Co., 123 N. Y. 280; 33 St. Rep. 416, and still further applied in Davidson v. Cornell, 132 N. Y. 228; 43 St. Rep. 887, and many other cases. It is not profitable to enter into an extended disctission of them. It is sufficient now to say that, however much particular facts may obscure the distinction, and render the rule difficult of application, no case is found holding that liability attaches to the master where the work carried on produces the condition, and such condition is known, or the means of knowing it are furnished the servant. As applied here, the process of manufacture required a high and uniform temperature in the room. This was produced by keeping the windows closed. They were fastened down, and the notices posted. Other and better methods might have been devised, but defendant was not bound to adopt them. It had the right to use this. Sweeney v. Envelope Co., 101 N. Y. 520. This condition was known, or the means of knowing it were furnished Huda, and when he accepted and continued in defendant’s employ, with such knowledge, he accepted the risk, -as incident to the employment; and we find no case holding a different rule, applied to similar facts. Cullen v. Norton, 126 N. Y. 1; 36 St. Rep. 359. We think the reasoning in the Pauley Gase is decisive of all the principal questions involved in this appeal relating to the obligations of the defendant respecting the construction of the building, and the avenues of. escape therefrom. So far as the claimed defects in other portions of the building—as the absence of the railing from the stairs, the removal of one flight, and the substitution of .a ladder, and the holes in the floor—are concerned, it is answer sufficient now to say that it does not appear that these defects, if defects they were, were even connected with anything which Huda did, or with his loss of life. It is a matter of speculation, which, we have seen, is condemned. Nothing appears in Johnson v. Steam, Guage & Lantern Co., 146 N. Y. 152; 66 St. Rep. 276, which lends color to the claim. This case expressly reiterates the doctrine of the Pauley Gase, and the discussion of the facts clearly shows evidence removed from speculation and guess. They are certainly distinguishable from the present case, for here it is not known that Huda was heard or seen, alive or dead, after Lewandowski left him.

Other questions are presented by the record, but. we refrain from further discussion,.as they are not likely to again arise, if the view now taken be finally upheld. This length of discussion seemed to be required, in view of the importance of the case, and the pending of other actions. We are led to the conclusion that the order setting aside the verdict was right, and should be affirmed.


author: Titus, C. J. Hatch, J.,

text:
    Emma J. Snyder, Resp’t, v. Susie A. Gardner, App’lt.

      (Buffalo Superior Court, General Term,

      Filed July 30, 1895.)

    Principal and agent—Ratification.
    Even though an agent is not expressly authorized by his principal to purchase a certain article ior her, her subsequent acceptance of the purchase, keeping it after knowledge of that fact and agreeing to pay for it, constitute a ratification of the agent’s acts.
    Appeal from a judgment in favor of plaintiff.

      J. W. Bussell, for app’lt; Gunneen & Goatsworlh for resp’t
   Titus, C. J.

This action was originally brought in the municipal dourt, and a new trial had in this court by a jury, which resulted in a verdict in favor of the plaintiff, and the defendant appeals from a judgment entered thereon, and from the order denying her motion for a new trial. The complaint alleges that the plaintiff sold and delivered to the defendant a harness and other articles, amounting to $68, and that $10 had been paid, and demands judgment for $53. The answer is a general denial. Mo defense was made by the defendant on the trial, and the case rests upon the plaintiff’s evidence.

It appears that the defendant is the wife of William A. Gardner. It is claimed by the defendant that there is no evidence that the property in question was sold to the defendant, or that her husband acted as her agent in making the purchase, which presents the only question in the case. The evidence is brief, being given by the plaintiff and her daughter. The plaintiff testifies that on the 12th day of August, 1893, William A. Gardner called at the office of Beck & Snyder—

“ And said his wife wanted a new side-bar phaeton and harness, whip, bit, and mat. He' said he had one he was not satisfied with, and would like to get another. * * * I told him we didn’t keep harnesses there. He said: ‘ You have a harness on your horse that suits my wife. I would like one like it It is just what my wife wants.’ I said: ‘I will get you one on approval, and if satisfactory to her she can pay for it.’ I did get Blakeslee and Koch to send the things up. The harness was to be $60, the whip $4, bit $1, mat $3. It was sent down on approval. It was perfectly satisfactory, and they were to pay for it when they took it a way. Mrs. Gardner took these goods into her possession, and still has them. At that time the firm of Beck & Snyder were not ■engaged in selling harnesses. Their business consisting solely in manufacturing and selling carriages, wagons, and buggies. "My husband was not present at the time.”

The bill of goods was shown the witness, and she said :

11 That is the bill for th§ goods purchased by me from Blakeslee & Koch. I have received from Mrs. Gardner to apply on this account $10. There is a balance of $58 due me. On the 25th of October I called alt Mrs. Gardner’s house. I saw and had a conversation with her. I asked her if the carriage that stood in front of the house that day was the one we sold her. She said it was. I told her I was the lady that sold her the harness, and I wanted the money. She said that she did n’t have the money, but she should arrange to pay it. She wanted to keep them and pay for them. She said she had used them so long she would make- some arrangement to pay for them; if she did n't pay all at once, she would part. Mr. Gardner came in and said, 1 You will have to do something; you can pay on the 5th $25’—and she asked if that was satisfactory. I said, ‘Yes.’ I called on Monday, the day after the 5th, and no one was at home. * * * Mr. Gardner didn’t make that payment of $25 to me, and nothing has been paid, except the sum of $10, to apply on this bill. The sum of $58 is now owing me with interest. At the time these goods were sold. I didn’t know anything about the financial standing of Mrs. Gardner. I understood from Mr. Beck that Mr. Gardner had a small account at the store. He was to pay for the goods when he took them. I was n’t there when he took them.. He came and got them himself.”

Fannie E. Curtin, the plaintiff’s daughter; testified that she went with her mother to the house of the defendant:

“ We went into the hall, and met Mrs. Gardner and talked with her. There was a carriage standing at the door. My mother said, ‘ Is that your harness and carriage and things down there?’ And Mrs. Gardner said1 Yes. ’And my mother said, Mrs. Gardner, I came to demand the harness and things or my pay.’ She said, I can’t pay you now but I will keep the things and will pay for them.’ Then Mr. Gardner stepped out and said, 1 Mrs. Snyder, my wife wants to keep the harness. She will pay you, but she hasn’t the money now. If you stop at the house on the 5th of November,, she will give you $25. If she can, she will pay it all at once.”

On the cross-examination she makes some statements that may or may not throw additional light on the question. She says, at the same time he bought this harness, he bought a carriage, and gave a New York draft for it. . At the time she went to defendant’s house—

“ She said she wanted to keep the harness, did’nt want to give it up, and that she would pay for it. She called Mr. Gardner, and the arrangement between them was that they were to pay if possible. He told her to pay for them, and she said she would. She would either pay all or $25 on the 5th of November. I should call at the house and get it.”

She says she never had done business of this kind before she went to the firm of Blakeslee & Koch to get this stuff. Beck & Snyder never bought anything of Blakeslee & Koch. She had purchased things there before and had paid for these goods in part. She says:

“ I paid fifteen dollars on these goods, I paid personally. The bill for these goods was not made out to Beck & Snyder.”

She does not know to whom they were delivered, and never saw the defendant in relation to the goods until October 25th. The bill for the goods was made out July 26th. This is all of the evidence there is in the case. In making this sale, did the husband act as the agent of the defendant ?

It is a familar rule that agency may be established by direct proof, or by the subsequent acts of the principal in ratifying the act of the agent, but the business must nevertheless be done for the principal, and any promise to pay for the goods purchased by another in the absence of an agency would be void. It is the claim of the plaintiff that Mr. Gardner, at the time he made this purchase, was acting for his wife, the defendant, and whether he was expressly authorized by her to purchase the harness or not, her subsequent conduct in accepting the' purchase, and keeping it after knowledge of that fact, and agreeing to pay for ft, was a ratification of his acts. Rogers v. Kneeland, 10 Wend. 219.

I am inclined to take this view of the case. It may be conceded that Gardner’s declaration that he was buying the harness for his wife, would not, standing alone, be any evidence, in an action against the defendant, of his agency (Marvin v. Wilber, 52 N. Y. 270). but it is competent as part of the res gestae, when followed by subsequent acts of ratification, and certainly, under the authorities, her acts were sufficient to ratify the purchase of the harness by her husband, if she knew what the facts were. She probably did know. She had ample means of learning. Her husband was present when this conversation took place, and took part in it, and she assumed to know what had been done, and assented to the purchase, saying that she wanted to keep them, and would pay for them. It was incumbent on her to resort to such means of information as were reasonably within her reach. She did not question her husband, did not seem surprised that the plaintiff claimed the sale was made to her, and made a demand upon her to pay for it, but, on the contrary, said she would pay for the harness.

It is elementary that, when the principal is informed of the acts of his agent, of what has been done, he must express his dissent within a reasonable time; otherwise his assent will be presumed. Cairns v. Bleecker, 12 Johns. 300. I have not overlooked the rule that, before the principal can be held to have ratified “ the unauthorized act of an assumed agent,” he must have full knowledge of the facts, so that it can be said he intended to ratify the act. Trustees v. Bowman, 136 N. Y. 521; 49 St. Rep. 820. But here there is no evidence that the act of Gardner in purchasing the harness was the act of an assumed agent, or that the purchase was unauthorized. In those cases in which this rule has been applied, the acts of the agent are shown affirmatively to be assumed and unauthorized. But no such question is in this case. The fair presumption from all of the evidence is that he was authorized to act, and no one disputes it, and that it was not without her knowledge that this purchase was made. The jury had the witnesses before them, and I do not think it can be said as matter of law that there was no evidence from which they might find the defendant liable by reason of her ratification of her husband’s acts in buying the property.

The judgment and order should be affirmed, with costs.

Hatch, J.,

dissents, upon the ground that the evidence is insufficient to establish agency of the husband to bind the wife, or of knowledge sufficient to' authorize a finding that she subsequently ratified his acts.

Affirmed by divided court.


author: Hatch, J. Titus, C. J.

text:
    Charles E. Walbridge et al., Resp’ts, v. Andrew Simon, App’lt.

      (Buffalo Superior Court, General Term,

      Filed July 30, 1895.)

    1. Pleading—Demurrer.
    • An objection that the claim sued on was not assigned to plaintiff until after the summons had been served, where it does not appear upon the face of the complaint, is not ground of demurrer, but may be raised by a general denial.
    2. Objection—Waiter.
    A right is waived for lack of objection, only where the defect could or might have been supplied if an objection had been interposed, or where it appears that the party intended to waive it.
    3. Evidence—Books of account.
    Books of account are not rendered admissible in evidence, to prove the claim sued on, by the testimony of a thiid person that the plaintiff had once presented him with a bill, which he found correct and paid, where he does not state that he saw the books or settled from them, or that they were at hand when the bill was presented and paid.
    Appeal from a judgment in favor of plaintiffs.

      J. W. Bussell, for app’lt; Marcey & Close and Louis F. Desbecker, for resp’ts.
   Hatch, J.

This action was commenced by the service of a summons on the 20th of September, 1894, and is brought to recover on a promissory note and book account assigned to plaintiff by one Charles Bu sober. The complaint is quite informal, and alleged in general terms .on an account for goods sold and delivered to defendant by Buscher, and assigned to plaintiffs, and its amount. The defendant answered by a general denial and plea of payment. The proof is undisputed that the account was not assigned to plaintiffs until September 25th, five days after the service of the summons. The answer put every fact in issue which it was essential for plaintiffs to establish in order to authorize a recovery, and included the present right of recovery at the commencement of this action. Mack v. Burt, 5 Hun, 28; Griffin v. Railroad Co., 101 N. Y. 348; Follmer v. Frommel, 53 Hun, 370; 44 St. Rep. 353. Plaintiff seeks to avoid this result by the claim that defendant was either required to demur or answer specially, and, further, that as no objection was taken upon the trial raising the question it was waived. It is clear that no demurrer would lie, for the complaint stated a good cause of action. No defect appeared which required any other answer than the one interposed. The defect was of evidence, and defeated plaintiff’s claim. There was no waiver. Cases which" hold that a right is waived for lack of objection only apply where the defect could or might have been supplied if an objection had been interposed, or where it appears that the party intended to waive it. Here the objection could not have been obviated, and there is nothing which shows an intention to waive it. The record discloses that the case was tried and submitted to the judge, and there is nothing upon which a waiver of the question could be predicated more than could be the waiver of any other branch óf his defense. He stood insisting that there could be no recovery against him, and plaintiff was required to make his entire case, of which ownership was a part.

I am also of opinion that error was committed in admitting the account books in evidence. Attempt was made to supply proof required, but, as I view the case, it falls short of what the authorities require. So far as Deck’s testimony is concerned, it only showed that upon one occasion Buscher presented him with a bill, which he found correct, and which he paid. But it is not pretended that he saw the books or settled from them, and they were not present when the bill was presented and paid. Testimony of this character was pointedly condemned in Beatty v. Clark, 44 Hun, 126. The testimony of Pries, a workman, does not answer to supply the defect. His testimony is that he was paid every week, that he knew how much was due, that he had seen Buscher refer to a book, but that he never did, as it was not necessary, for he knew how much he was entitled to. This falls short of the proof which received support in McGoldrick v. Traphagen, 88 N. Y. 887, and is not suffient under mariy well-considered authorities. Dooley v. Noan, 57 Hun, 535; 33 St. Rep. 118; Davis v. Seaman, 64 Hun, 572; 46 St. Rep. 810.

The j udgment appealed from should be reversed, with costs.

White, J., concurs.

Titus, C. J.

(dissenting).—I cannot concur with my associate in the conclusion reached by him. But two questions are raised on this appeal. The first relates to the sufficiency of the plaintiff’s proof to authorize the introduction of the plaintiff’s assignor’s books of account in evidence. From the return it appears that Charles Buscher was a plumber, engaged in doing business in this city, and assigned to the plaintiff the account for which this action was brought. It also appears that Buscher had regular dealings with defendant, extending over quite a period of time; that he had no clerk, and made entries in the book himself; that he delivered to the defendant a portion of the goods sold, and rendered some of the services charged; and, from two parties who had settled with him on these books, that they were correct and honest books of account. Upon this last proposition the defendant claims that there was no evidence that any person having an account with Buscher had settled with him from these books. The evidence is confined to the testimony of two witnesses. Witness Deck testifies that he did business with Buscher, and that he settled with him on an account rendered, and that the account was correct. Buscher himself testifies that ho kept an account with Deck in these books, and that a true and exact copy of Deck’s account was made from the books, and that he gave it to him, and on this account Deck settled and paid him the amount. The witness Pries, an employe, whose account was kept in this book, says, in substance, “ he is paid by the week, and his account is kept in the book;' that he has settled with Buscher and received his pay, and at the time of such settlement Buscher looked at the account in the book,” and that it was always correct. This is the only evidence introduced for the purpose of showing that the books of Buscher were honest books of account, and I think it was sufficient, under the rule adopted by the courts, to admit these books of account in evidence. Vosburgh v. Thayer, 12 Johns. 461; Mc-Goldrick v. Traphagen, 88 N. Y. 337.

The question that the action was prematurely brought is now raised for the first time. The written assignment of the account of Buscher to the plainitffs bears date the 25th day of September, and the action was commenced by the service of a summons on the 20th day of the same month, and' the assignment is written on the bill of particulars, but it does not appear to have been read in evidence on the trial. The witness McCracken gives the .only testimony relating to the assignment. After stating that the note and account had been assigned to the plaintiffs, he says he cannot give the exact date; but on being referred to the bill of particulars he says: ‘‘ It was on September 25th evidently having been shown the date thereon written. The defendant expressly admitted the first ten pages of the bill of items,; and did not object to. any of the proof on the ground that the assignment bore the date, or was made subsequent to the commencement, of the action. No motion was made for a nonsuit, or for a direction of a verdict at the close of the case on that account, and, so far as the record ' shows, the counsel who tried the case in the court below did not in any manner raise the question, or call the attention of the court to the fact, and took no objection on that ground during the trial, and I do not think he should be permitted now for the first time to raise a question which, if presented, might have disposed of the case, or he might have had the date corrected to conform with the facts. The case was tried on the assumption that the assignment was made before the commencement of the action, and what was assumed to be a fact by all the parties, upon a matter not affecting the merits of the plaintiff’s demand, should control the court here against the date on the bill of particulars, and a party not having raised the objection should be deemed to have waived it. There is no merit in the point, because it is undisputed that the plaintiff is, and probably at the time of the commencement of the action was, the owner of the account sued upon. The account bears date September 19th, and probably some one thought that a written assignment was necessary, and it was written on the back of the very bill of particulars furnished pursuant to a demand made by the defendant after joining issue in the action. Under the circumstances, and in view of the fact that the parties have assumed, until this appeal was argued, that the assignment was made to the plaintiff before the action was commenced, a reversal of the judgment on that ground would hardly be consistent with that kind of justice mentioned in the Code (section 3063), “that the appellate court must render judgment according to the justice of the case, without regard to technical errors or defects which do not affect the merits.”

I therefore think the judgment should be affirmed, with costs.


author: White, J.

text:
    The People, Resp’t, v. Henry J. Warren, App’lt.

      (Buffalo Superior Court, General Term,

      Filed July 30, 1895.)

    Constitutional law—Employment of aliens.
    Chapter 622 of 1894, amending section 2, chap. 385 of 1870, which forbids a contractor with a municipal corporation to employ an alien as a laborer on the the public works, is unconstitutional and violates the treaty between the United States and Italy.
    Appeal from a judgment of conviction for violation of section 1 2, chap. 385 of 1870, as amended by chap. 622 of 1894, which makes it a crime for a contractor with a municipal corporation for the construction of public works to employ an alien as a laborer on such work.

      Frank R. Perkins and John Q. Milburn, for app’lt; James L. QuacJcenbushj for People.
   White, J.

The Barber Asphalt Paving Company is a West Virginia corporation engaged in the business of paving streets in the cities of this state under contracts with the municipal authoriities. In June, 1894, the paving company entered into a contract with the city of Buffalo to pave Kensington avenue, a public street in said city. The defendant was the superintendent of the company, and as such hired and discharged its laborers on that work. During the progress of the work Warren employed an alien Italian as a laborer, and for that he has been indicted, tried, and convicted. Ho question is made as to the defendant’s liability, although he acted solely as the agent and servant of the paving company in employing the alien.

The appellant contends—First, that the facts stated in the indictment do not constitute a crime; second, that the statute under which he is adjudged to be a criminal is repugnant to our state and national constitutions, and to the treaty between the United States and the king of Italy.

Section 1 of article 1 of our state constitution provides that no member of this state shall be deprived of any of the rights of privileges secured to any citizen thereof unless by the law of the land or the judgment of his peers. Section 6 of article 1 provides that no person shall be deprived of liberty or property without due process of law. Article 5 of amendments to the federal constitution provides that no person shall be deprived of liberty or property without due process of law, and section 1 of article 15 provides that no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, and that no state shall deprive any person of liberty or property without due process of law. By article 3 of the treaty with Italy it is provided, in substance, that resident Italians in the United States shall enjoy the same rights and privileges in respect to their person and. property as are secured to our own citizens.

The only way by which a member of the state, whether citizen or alien, can be deprived of the rights and privileges thus secured to him is by due process of law,—namely, a proceeding for that purpose conducted in accordance with the forms and methods, and by the means prescribed, for the enforcement of law. The relation of the paving company to the city of Buffalo was that of an independant contractor, and while engaged in the transaction of its business in this state it is entitled to the same protection and enjoys the same liberty, rights, and privileges as individual members of the state. Santa Clara Co. v. Southern Pac. R. Co., 118 U. S. 394. Personal liberty—that is, the right, among others, to make contracts to labor for others and to employ others to labor—is secured by constitutional law to all members of this state, and the right is inalienable. Greenh. Pub. Pol. rule 303; In re Baker, 29 How. Prac. 485.

It will not be profitable, as it seems to me, to argue at length the foregoing propositions of law. If, however, authorities are deemed necessary, see dissenting opinion in the case of People v. Beck, 30 N. Y. Supp. 473, and cases there cited. Indeed, the respondent’s counsel does not dispute that such is the law. His contention is that the statute in question does not in any way affect or relate to the right of pursuit, but that it simply prescribes rules for the management, or “regulation, as he puts it, of its use of its own property by the state; and he concedes that it is the only theory upon which the validity of the statute can be sustained. His argument is that, as Kensington avenue, in Buffalo, is a public street, it is owned by the city ; that as the city is a political subdivision of and a municipal corporation within the state, the ownership of Kensington avenue is in the state; and the Italian worked on the pavement being constructed in Kensington avenue, he was in fact working for the state, and the state had the same absolute right to say who should or should not work on the pavement that Warren would have had if he had been doing private work for an individual member of the state,—in other words, that the state had the same right to designate what laborers the paving company should employ and refuse employment to, as it, the state, would have had if it were doing the work through its agents and servants.

The position thus assumed by the people is novel, and not altogether lacking in plausibility. It is undoubtedly true that, if the state engages in the construction of public works, it may employ and refuse employment to whom it will. It can do that in precisely the same way and to the same extent that an individual member of the state may exercise the same right in reference to his private and individual affairs. The right is the same in either case. It is at this point, as it seems to me, that the respondents fall into error. The contention is, as we have seen, that the state owns the street, and that, therefore, notwithstanding the pavement in it is being constructed under a contract between the municipality and an individual member of the state, the act of employing laborers is one of dominion over and regulation of its own property by the state. The statement of the case carries with it a complete destruction of the theory upon which the claim is made. That the state surrenders its public and governmental functions, and stands on an equal footing with an independent contractor with it, as to such work as that in question here, and that, as a state, it exercises no dominion over the property or control over the employment of laborers upon the work being done, is well stated by Dillon, in his work on Municipal Corporations, as follows :

“Each one of the United States in its organized political capacity, although it is not in the proper sense of the term a corportion, yet it has many of the essential faculties of a corporation r * * * Private rights, the power to sue, and the like. * * * Like corporations, * * * a state can make contracts, * * * maintain actions to enforce its rights, and redress its injuries. While the power to contract is a necessary constituent of the sovereignty of a state, when it enters into a contract with a private individual it relinquishes its sovereign character by such .transaction, and as a general rule, can claim no exemption from the rules of law applicable to the contracts of private parties under like circumstances. Delafield v. Illinois, 2 Hill, 159; Indiana v. Woram, 6 id. 33; Lloyd v. New York, 5 N. Y. 374, opinion of Foot, J.; People v. Stephens, 71 id. 549; Patton v. Gilmer, 94 Am. Dec. 665.”

The right by virtue of which the state regulates the use of its property is one of dominion and sovereignty, as clearly appears from the case of McCready v. Virginia, 94 U. S. 391, and other1 cases cited by the respondent’s counsel; whereas, the right of the state under a contract with one of its individual members, as in the case at bar, is private and legal, the same in quality and character as the right of the individual with whom it contracts, and in no wise different therefrom. The exercise of the right or power of dominion over property possessed by the state, then, can have no application to the personal liberty of its members. In matters of independent contract, its rights, powers, and functions in a case like the one at bar, are the same as those of an individual, and therefore it cannot dictate the terms and conditions of a contract between an individual and one of its municipal corporations which would be illegal if the contract were made directly by itself.

If the views here expressed are sound, the statute in question, seeks unlawfully to interfere with the personal liberty of the individual. I think it does, and that it is in conflict with our federal and state constitutions, and the treaty with Italy as well; and until compelled by judicial 'authority to yield assent to such legislation as that in question here I shall esteem it a privilege and. solemn duty to stamp it with my disapproval.


text:
    City of Buffalo, App’lt, v. Maurice Marion, Resp’t.

      (Buffalo Superior Court, General Term,

      Filed July 30, 1895.)

    Auctioneers—License by city.
    The licensing of auctioneers and the regulation of their conduct as such are, within this state, within the power of the legislature, and statutes and ordinances for that purpose are valid.
    Appeal from a judgment, dismissing the complaint.

      Charles L. Feldman, for app’lt; M. A. Gear on, for resp’t.
   White, J.

The charter of the city of Buffalo provides, among other things, that the common council shall from time to time enact ordinances to license and regulate auctioneers. Pursuant to that provision of the charter, the common council has enacted an ordinance prohibiting the sale of watches, at auction ' after six o’clock in the evening, under a penalty of $50. The defendant violated the ordinance; and this action is brought to recover penalty. The defendant claims that the ordinance is void, and the court below so decided. The ordinance in question follows the charter, and is authorized by it. The licensing of auctioneers, and the regulation of their conduct as such, has always been held, within this state, to be within the power of the legislature, and that statutes and ordinances for that purpose are valid. Rev. St.(Banks & Bros.’ 8th ed.) pt. 2, chap. 17, tit. 1; People ex rel. Schwab v. Grant, 126 N. Y. 473; 35 St. Rep. 596.

The judgment appealed from should be reversed, and a new trial ordered, with costs to abide the event

All concur.


author: Gildersleeve, J.

text:
    Michael Rubino by Guardian, etc., App’lt, v. William H. Force et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed July, 1895.)

    Appeal—Conflicting evidence.
    A verdict, upon conflicting evidence, will not be disturbed on appeal.
    Appeal from a judgment entered on a verdict in favor of defendants, and from an order denying a motion for a new trial.

      M. P. O'Connor, for app’lt; Francis Farquhar, for resp’ts.
   Gildersleeve, J.

This action was brought to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendants’ servants in the management of defendants’ horses and truck. A large number of witnesses were examined on both sides, and the record shows a very careful and exhaustive trial of the issues presented. There was a conflict of evidence, and the jury rendered a verdict for the defendants. It is not claimed by the learned counsel for the appellant that the verdict is without sufficient evidence. It has ample support in the testimony adducted. The judgment challenged on account of the alleged errors of the learned trial judge in the charge to the jury, and in rulings on requests to charge. We find no error in the rules of law laid down for the guidance of the jury. They were correctly instructed. The record discloses no ground for reversal of the judgment.

The motion for a new trial was properly denied, and the judgment and order appealed from should be affirmed, with costs to the respondents.

All concur.