author: Boardman, J.

text:
    Henry O. Ely, Appl’t, v. William C. Taylor, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed November, 1886.)
    1. Executors and ad min istr atoes — Costs against — When Arrowed— REFUSAR TO REFER — CERTIFICATE OF REFEREE — CODE ClY. PRO. § 1S86.
    Where the plaintiff demands costs in an action against an executor or ad-' ministrator for refusing to refer a claim under Code Civ. Pro., § 1836, the certificate of the referee.before whom the trial took place, that the defendant, before the commencement of the action, refused to refer the claim under the statute is prima facie conclusive upon the court, and is a fact proper to be certified.
    2. Same — Facts appearing on triar may be referred to in support of CERTIFICATE — REFUSAD A QUESTION OF FACT.
    Where a case is charged to have been unreasonably defended, the facts which appeared upon the trial may properly be referred to, and in such cases, if the certificate does not state all the facts fully and fairly, they may be shown by affidavits. But where the sole fact controlling the granting of costs against the defendant, depends upon his refusal to refer, the certificate of the referee as to a concession by defendant on the trial ought to be conclusive. The refusal to refer is a. fact and: not a conclusion of law. The evidence of such fact need not be certified.
    3. Same — When executor is personarry charged — Affidavits.
    Whether the costs should be charged against the defendant personally, or against the estate he represents, may depend upon other facts appearing on the trial, which may be shown by affidavits if necessary.
    4. Same — Must appry to court for arrowance of costs.
    The plaintiff must apply to the court for an allowance of costs before it can be included in the judgment.
    Appeal from an order denying plaintiff’s motion for costs, ’ etc.

      Edmund O' Oonnor, for appl’t; D. S. Richards, for resp’t.
   Boardman, J.

This is an appeal from an order refusing plaintiff costs and an extra allowance. The plaintiff presented to defendant a bill of services rendered to or for defendant’s intestate. The claim was rejected. The referee certifies that the defendant refused to refer the claim under the statute. He also shows the concession of the defendant that he refused to refer the claim in pursuance of plaintiff’s notice, whereby plaintiff offered to refer the claim under the statute to certain persons named, “ or any other suitable or proper person, as referee, to be approved by the surrogate.” Besides this evidence, concession and certificate furnished by the referee, there is evidence that B. S. Richards, the attorney for the defendant in this action, refused to refer the claim, and advised plaintiff’s attorney that he might as well sue it at once. Afterwards the action was commenced, and again the defendant, through his counsel, resisted a reference, which was, however, granted.

Section 1836, of the Code provides that where the “ defendant refuses to refer the claim as prescribed by law, the court may award costs against the executor or administrator, to be collected either out of his individual property or out of the property of the decedent, as the court directs, having reference to the facts which appear on the trial. When the action is brought in the Supreme Court -. . . the facts must be certified by the judge or referee before whom the trial took place.” We think the certificate of the referee “ that the defendant, before the commencement of the action, refused to refer the claim under the statute ” is prima facie conclusive upon the court, and is a fact proper to be certified. Certainly no person can better determine that question, and it is far wiser to allow such determination to control than resort to affidavits of attorneys and interested parties; often the merits of the controversy are decided, and the costs alone are at stake. Of what use is a certificate if it decides nothing? Why should a judge or referee be required to certify what the fact is, and then allow him to be contradicted or impeached by loose affidavits ?

When a case is charged to have been unreasonably defended, the facts which appeared upon the trial may properly be referred to, .and in such cases, if the certificate does not state all the facts fully and fairly, they may be shown by affidavits. But where the sole fact controlling the granting of costs against the defendant depends upon his refusal to refer, the certificate of the referee upon a concession by defendant on trial ought to be conclusive. Whether the costs should be charged against the defendant personally, or against the estate he represents, may depend upon other facts appearing on the trial Avhich may be shown by affidavits if necessary,. The refusal to refer is a fact and not a conclusion of law. The evidence of such fact need not be certified.

The plaintiff must apply to the court for an allowance of costs before it can be included in the judgment. Such was the law before the Code and it is so still. The certificate of the referee, it would .seem* must be presented showing the necessary facts. The essential fact in the present case is the refusal by defendant to refer,. If he did refuse, the plaintiff is entitled to costs. If it be conceded that the certificate is not conclusive, •and that other-evidence upon that question is competent, we still think the refusal of the defendant to refer is abundantly established. We have the certificate of the referee to the exact fact. The referee indicates by his decision that plaintiff is entitled to costs to be awarded by .the court. The defendant upon the trial admitted his refusal to refer. In response to a proposal to prove the necessary facts, to enable the referee to certify to such refusal, the defendant’s attorney in this action, before action begun, advised plaintiff’s attorney to sue at once, as there was no use of talking about referring the claim. In answer to such evidence there was, in connection with the rejection of plaintiff’s claim, an offer by defendant to refer same to three persons to be approved, etc., which offer was neither accepted nor rejected by the plaintiff. Nineteen days thereafter or less, plaintiff served upon defendant’s Exhibit J., offering as herein before stated, which pffer the defendant refused. The pretence that defendant was willing to refer to three but not one person, is shown to be unfounded, by defendant’s subsequent unwillingness to have three, and. his preference for one. The affidavit of Richards and Taylor do not squarely deny the. verbal refusal made to O’Connor to refer, but undertake to say-how, or under what circumstances, it was said, if said at all.. There is not a particle of evidence to refute the admission made upon the trial, which must have been understood by the court and plaintiff as .a refusal by defendant to refer the claim under § 1880 of the Code, and the defendant must have intended that the court and plaintiff should so understand the-' admission.

Upon such a state of facts we are clearly of the opinion that the defendant, by his refusal to refer the claim, became liable for the costs under the section of the Code as cited.

The order of the special term should be reversed, and the plaintiff’s motion for costs and disbursements in this action,, should be granted with $10 costs, and disbursements of this-appeal.

Hardirg- and Follett. «TJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    David Gray, Resp’t, v. David U. Wolcott et al. Applt.

      (Supreme Court, General Term, Fourth Department,

      Filed November, 1886.)
    Practice — Justices’ Courts — Appeal to county court — Service oe Notice of appeal — Code Civ. Pro., § 3049.
    The tender of a notice of appeal to a justice of the peace who refuses to-receive it, but accepts it as good and sufficient service, is sufficient to save a-party’s right of appeal, and will be good ground for an order permitting the appellant to perfect his appeal under Code Civ. Pro., § 3049.
    Appeal from an order of the County Court permitting plaintiff to perfect his appeal from a judgment of a Justice of the Peace, ete-

      Risley, Quin & Perry, for resp’t: L. E. Groodwin, for appl’t.
   Boardman, J.

The appeal is taken from an order of the county court permitting the plaintiff to perfect his appeal from a judgment of a justice of the peace, and consolidating the same with another appeal in the same case, both appeals being for a. new trial in the county court, and to be tried as one case in. the said court.

The correctness of this order depends upon the service in due time of the notice of appeal upon the justice. If it was so served,, the county court in the exercise of a wise discretion, as we think, permitted the plaintiff to perfect his appeal under § 3049 of the Code. There is some controversy about the time and manner of the service upon the Justice. It is quite conclusively .established, however, that the plaintiff did all he could in the way of service upon the justice on the 19th of April, and in time. The justice refused to receive the notice, but accepted it as a sufficient service.' On the next day he accepted the notice and his fee for a return. The tender of a notice of appeal to a justice who refuses to receive it, but accepts it as a good and sufficient 'service, must be sufficient to save a party’s right of appeal.

If any portion of the judgment of the justice was a proper subject of review, it was well that the whole judgment should be so reviewed, and the case in all its parts be retried in the county court. But there was an evident design and purpose on the part of the defendants to perfect their appeal from so much iof the judgment as was against them and prevent the plaintiff -from appealing from the part against him. The service upon 'Havana was nevertheless good and sufficient.’ He was evidently itrying to avoid service upon him and so was Wolcott. Under the .fasts as presented by the appeal papers, we think the learned county judge correctly decided that the plaintiff had in good faith • served his notice of appeal in due time on the justice, and hence in the discretion of the county court the order appealed from might justly be granted. We cannot dsiturb the order so far as it rests upon discretion, 36 Hun, 20, and we are not disposed to .do so in so far as the order is dependent upon the decision upon the facts. It is better if an appeal is to be had at all, that the whole merits be retried in the county court and that the rights ,of all the parties be there adjudged and determined.

The order of the county court must be affirmed with $10 costs and printing disbursements against David C. Wolcott, appellant.

Habdin and Follett J. J., concur.


text:
    John W. Hollenback, Appl’t, v. C. J. Knapp, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed November, 1886.)
    1. Costs — Justices’ court — Appeal — Offer of Judgment — Code Civ. Pro., § 3070.
    Where the plaintiff sued in a justices’ court for $28.65, and defendant recovered a judgment for costs of $15.39, which costs and the return fee of ■ $2, plaintiff paid and appealed to the county court. Thereafter defendant served an offer to allow judgment in the county court for $28.65 in favor of plaintiff, which was accepted. Held, that plaintiff was entitled to recover ' the $ 17.39 which he had paid to perfect his appeal. That the costs and disbursements have nothing to do with the offer of judgment and ordinarily follow the.recovery as an incident thereto. See Code Civ. Pro., § 3070.
    •2. Same — Practice^-Stav of taxation.
    It was incorrect for. the county judge to order the entry of judgment for ■the f>28.65„ and stay the taxing of plaintiff’s costs. The costs should have .been-taxed and included in the judgment.

      Appeal from an order of tlie county court directing judgment and staying taxation of costs.

      M. N. Tompkins, for appl’t; William M. Ross, for resp’t.
   Boardman, J.

This action was commenced in a justice’s court, where the defendant succeeded and had judgment against the plaintiff for costs 115.89. The plaintiff claimed to recover $27.50 with interest from September 1st. 1885. The plaintiff appealed to the County Court from the justice’s judgment and paid said $15. 39 costs and $2 for return May 12th, 1886 and after such appeal had been taken, the defendant served upon the plaintiff an offer to allow judgment in the county court in said action in favor of plaintiff and against himself, defendant, for $28.65. This offer was duly accepted by a notice without any date. At the same time notice was given by plaintiff that judgment would be entered on the offer and acceptance and the costs taxed at $17.39, being the amount of costs and fees paid to the justice on taking the appeal. This notice was accompanied by an affidavit showing the facts relating to the justice’s court and judgment and the amount of costs and fees so paid .to the justice. The defendant thereupon obtained on an affidavit, an order to show cause before the county court, why the pretended acceptance of offer of judgment. . should not be set aside, and why the proceedings of plaintiff and appellant should not be stayed, until the cause can be regularly reached and tried in its order on the calendar: or, if the court should deem such acceptance of judgment regular, why appellant should not be compelled to enter judgment against the respondent for the sum of $28.65 and for such other, etc., with costs.”

On the return of such order to show cause the county court ordered the appellant within ten days to enter judgment against the defendant for $28.65, and stayed the plaintiff’s proceedings to tax his costs before the county clerk and gave defendant $10 costs.

We think the practice of the defendant’s attorney was incorrect, so far as he sought to stay the taxing of plaintiff’s costs, and ordered the entry of judgment for the $28.65 only, when the plaintiff should have taxed his costs and included them in the judgment. The defendant could move the county court to strike them out as illegally or improperly inserted under the offer and acceptance. The relief granted was therefore unwarranted and the other reliefs sought by defendant was in effect denied.

But upon the merits of the case we think the plaintiff was entitled to recover the $17.39 which he had to pay to perfect his appeal. By Section 3070, the offer of judgment must be “for a specified sum.” On acceptance, the clerk “ must enter judgment accordingly.” The party refusing to accept “ shall be liable for costs of the appeal, unless the recovery shall be more favorable to him than the sum refused.” The costs and disbursements are a mere incident to the recovery. The -debt or damages are the recovery and not the costs, which are uncertain, indefinite, and growing, as the case goes on. The costs and disbursements have nothing to do with the offer of judgment and ordinarily follow the recovery as an incident thereto. If the plaintiff had not accepted the offer of judgment made by the defendant he would necessarily have failed in obtaining a more favorable recovery, because the offer was for the whole amount of his claim, and so he would have been punished with the costs of the appeal. Can it be supposed that he is to be punished by losing the costs and fees paid the justice because he accepts of the total amount of his claim when offered ? That would be highly unjust and we do not believe it is the meaning or intent of the Code. It would be a reproach to the law to permit such injustice if it can be fairly avoided. Prior to the amendment of 1885, the plaintiff’s position was clearly correct,-and, though the language is altered and less distinct, we do not believe any substantial change in this respect was contemplated.

The order of the county court should be reversed with $10 costs and disbursements of this appeal to plaintiff against the defendant, and the motion of the defendant denied witli $10 costs.

Hardin and Follett, JJ., concur.


text:
    People of the State of New York, Resp’t. v. John E. O’Sullivan, Appl’t.

      (Supreme Court, General Term, Fourth Department,

      Filed November, 1886.)
    CRIMINAL TRIAL — EVIDENCE — COMPETENCY—RELEVANCY.
    It is irrelevant and incompetent on the trial of one for the crime of rape to prove, that at a time prior to the offensecharged in. the indictment he attempted to commit a similar crime.
    Appeal from judgment on conviction and from an order denying a new trial.

      Ceylon H. Lewis, Dist. Att’y for resp’t; John C. Hunt, for appl’t.
   Boardman, J.

The defendant was convicted of the crime of rape. Upon the trial the complainant was allowed to testify under objection to its competency that on another occasin, some four days prior to the offence charged in the indictment, the defendant made an assault upon her with intent to ravish.

The admission of such evidence is now urged as error for which this conviction and judgment should be reversed. ' Its admission is attempted to be justified upon the theory that it was competent to show defendant’s purpose and motive in the act complained of. But the purpose and motive of the defendant in the crime charged if proved, was not the subject of doubt. The evidence admitted tended to establish another and different crime from that charged in the indictment. From such evidence, if believed, the jury would more readily infer the defendant’s guilt of the offense for which he was tried. In any event such evidence was likely to prejudice the jury seriously and strengthen the chances of a conviction. We are of the opinion that the evidence of another crime on a former occasion was not competent evidence against the defendant upon this trial, and that the admission of such evidence was an error fatal to the conviction. Such seems to be the rule of law in. this State under numerous authorities. In Coleman v. People, 55 N. Y., 81, the court says :

“ The general rule is against receiving evidence of another offense. A person cannot be convicted of one offense upon proof that he committed another, however persuasive in a moral point of view such evidence may be.” In Copperman v. People 56 N. Y., 591, Chief Judge Church says, “ It is a general rule and one that should be strictly observed, that it is incompetent upon the trial for one offense to prove that the accused has commited another not connected with it. Nor can particular acts of criminality or immorality not connected with the facts constituting the crime for which the accused is being tried, be thrown into the scale against him to prejudice the jury or create a probability of his guilt.” To the same effect are People v. Crapo, 76 N. Y., 291; People v. Kennedy, 32 N. Y., 141; Camcross v. People, 17 W. Dig. 383; Roscoe, Crim. Ev., 88 and 810. People v. Gibbs, 93 N. Y., 470-473; Rosenzweig v. People, 6 Lansing, 462.

Stephens in his Law of Evidence gives the rule in Article 10, p. 15, and by way of illustration: “ (a) The question is whether A. committed a crime. (b) The fact that he formerly commited another crime of the same sort and had a tendency to commit such crimes is irrelevant.”

There are exceptions to the general rule which are pointed out in the authorities cited, one is when guilty knowledge is an ingredient of the crime, as in cases for passing counterfeit money or receiving stolen property. Another is the case of obtaining property by fraud and false pretenses. In sueh cases evidence of other transactions of a like nature indicating guilty knowledge or criminal intent is admissible. But in the case of an actual rape these elements are wholly wanting.

Many cases are cited from the reports of other States where a different rule seems to have been laid down, but in many instances the prosecutions were for adultery or illicit intercourse in which the rule might well differ from that held by our courts,, in ordinary cases of crime. In a few other cases the authority is directly in point. But we must follow the adjudications of our own courts, and we have found none, nor are any cited by the learned district attorney, which sustain, the ruling upon the trial.

This,exce¡3tion is fatal to the conviction and we do not deem it necessary to consider the various other points presented by the appellant.

The judgment and order appealed from must be reversed and a new trial granted.

HardiN and Follett, JJ., concur in result.


text:
    Harley J. Peet, Resp’t, v. Eri Kent, Appl’t.

      (Supreme Court, General Term, Fourth Department,

      Filed November, 1886.)
    1. MORTGAGE — ASSUMPTION OP — DEED — PAROL PROOF — WHERE COMPETENT.
    Where a deed contains no assumption of a mortgage debt or agreement to pay it, parol proof of such a contract does not contradict the deed, and is competent to establish the liability of the grantee to pay such debt.
    2. Same — Judgment In foreclosure — When rights of defendants as between each other not determined by.
    A judgment in foreclosure, although determining plaintiff’s obligation to pay, does not necessarily determine the rights of the defendants in the action between each other.
    8. Costs — When recoverable against one not primarily liable.
    Where plaintiff sues for the amount of a judgment he has been compelled to pay on account of defendant’s failure to perform his contract with him, plaintiff is not entitled to recover any costs he paid in an effort to avoid the payment of the judgment.
    Appeal from judgment of Special Term.

      Scoville & De Witt, for resp’t; Chapman & Lyon, for appl’t.
   Boardman, J.

This action was brought to recover a deficiency of about $2,500, arising under a mortgage foreclosure which plaintiff was obliged to pay by reason of his sale and guarantee of payment of the mortgage foreclosed. It is alleged that defendant when he bought the property verbally agreed to pay-the encumbrances upon the place including the mortgage which was foreclosed. ' The plaintiff and defendant were among others parties defendant, in the foreclosure suit, and upon the sale under that judgment a deficiency of $2,531.04 arose for which amount a judgment was had against the plaintiff, who afterwards paid the same with some $30 or $35 of costs incurred in enforcing the collection. For these sums with interest a recovery was had.

The defenses interposed were (1) a general denial, (2) statute of limitations, and (3) the bar of the judgment in the foreclosure action.

There is little else than the question of fact which calls for discussion. There is abundant evidence of a promise and agreement by the defendant, to pay all the incumbrances including the mortgage foreclosure which were liens upon the farm at the date of the sale. The deed contains no such assumption of the debts or agreement to pay them, but such parol proof of contract does not contradict the deed and is competent to establish the liability of the defendant. Taintor v. Hemingway, 18 Hun, 458, affirmed, 83 N. Y., 610. It is true the defendent denies that he agreed to assume or pay these liens. The result is a conflict of evidence. The court below has decided in favor of the plaintiff. We cannot say such decision is against the weight of evidence. While the decision finds that Kent did not understand the liabilities he assumed by his conduct and words, it is still plainly found that he was bound to' pay the incumbrances to the holders thereof, that he understood he was keeping back purchase money to pay such liens, and that the vendor understood that he was to pay the same. This language is not explicit but it amounts, we think, to a finding that the defendant when he bought the farm assumed and agreed to pay the incumbrances thereon.

The plaintiff’s cause of action is founded upon the failure of the defendant to pay the mortgage foreclosed, whereby and in consequences whereof a judgment for the deficiency was had against the plaintiff. The defendant’s contract was not so far broken as to furnish a cause of action until plaintiff had suffered damages by his neglect to pay. But if we treat it as a contract to pay these liens there is nothing to indicate an intent or expectation that they should be paid at once, but rather within a reasonable time thereafter. Again, by the terms of the mortgage, a foreclosure could not have been had before August 2d, 1880, except upon a failure to pay the interest thereon, which, as we understand, did not occur until 1879, only three years before this action was brought.

The judgment in foreclosure did not determine the rights of the defendants, in that action between each other. It certainly did determine the plaintiff’s obligation to pay. But it was not decided and it was not necessary to decide wffiether plaintiff, had a remedy over against the defendant Kent. A judgment against the maker and endorsers of a promissory note may determine that all or part are liable to the plaintiff, but it’ does not determine what may be their rights inter sese. The plaintiff is not estopped or barred by the judgment upon the foreclosure from pursuing the present remedy. Hoyt v. Martense, 16 N. Y., 231, Malloney v. Horan, 49 N. Y., 111, 116.

We think the judgment for the deficiency, $¡2581.04, was the measure and limit of defendant’s liability. That was the amount which the plaintiff was compelled to pay by reason of the defendant’s neglect to perform his contract. The costs of the mortgage foreclosure are not included in that sum, $2581.04, but were first paid out of the proceeds of the sale as required by the judgment. But we do not think any costs thereafter paid in an effort to avoid the payment of the judgment for deficiency or for any other reason was due to defendant’s default or was properly chargeable to him. The sum of thirty five dollars with interest thereon from the 27th day of April, 1882, to the 30th day of July, 1888, amounting in all to the sum of $37, 65, should be deducted from the amount of the judgment and as so reduced the judgment should be affirmed.

Judgment reversed and new trial ordered with costs to abide the event unless the plaintiff shall stipulate to deduct from the judgment, $37.65 as stated in the opinion, in which case the judgment as so modified is affirmed without costs of the appeal to either party.

Hardin and Follett, JJ., concur.


text:
    Anna M. C. Dougherty, Resp’t, v. The Remington Paper Company, Appl’t.

      (Supreme Court, General Term, Fourth Department,

      Filed November, 1886.)
    1. ÜOWEE — ADMEASUREMENT OF — PRACTICE — REFERENCE.
    On an application for the admeasurement of dower after a decision of the referee as to the rights of the parties under the issues (there being no issue joined as to the practibility of an actual admeasurement) before a judgment declaring them can be entered, a reference is requisite to ascertain whether actual admeasurement or partition can be made.
    2. Same — When a sale will be had — Code Civ. Peo., § 1619.
    Under Code Civ. Pro. § 1619, it is not sufficient that one of the parties should be injured by an actual partition. The rights of all parties are to be looked after and protected, and if a division of the land cannot be made without injury to the interests of all the parties, a sale may be had.
    Appeal from Referee’s decision.

      O'Brien Emerson for resp’t; JDorwine Brown for appl’t.
   Boardman, J.

This action was brought to recover dower in certain real estate claimed to be owned by, and in the possession of, the defendant. Defenses were interposed, and a reference had to hear, try, and determine the same. In the pleadings there is no issue joined as to the practicability of an actual ad-measurement of a specific portion of the land to plaintiff, for her dower. The only allusion thereto is in the alternative relief demanded in plaintiff’s prayer for judgment.

We therefore conclude it was not a matter to be tried under .the order of reference, and that the evidence offered and ad-raitted should have been rejected. Such error, however, need not involve an entire new trial. The introductory judgment must be reversed and the 4th finding of law be stricken from tbe report as unauthorized and unwarranted. The defendant’s exception to this 3d conclusion of law, must be sustained.

It follows as a consequence of this decision, that the court has not been legally shown, “ that a distinct parcel cannot be ad-measured and laid off,” as is required by § 1619 of Code, before it may by judgment direct the property to be sold at public sale.

Undoubtedly, in case of a trial by the court, the question of actual admeasurement of dower could be investigated and decided so that the rights of the parties and the necessity of a sale and the interlocutory judgment could all be determined in a single hearing. The course we apprehend could not often be practicable, since feasibility of an actual partition could not generally be denied without a visible examination of the lands by court, referee or commissioners. Indeed, the possibility of an actual partition might often greatly depend upon the rights of the several parties as decided by the referee on trial, and until such rights were so determined, the question could not be intelligently considered. We think, therefore, that the practice requires in all cases (except, pérhaps, where the trial is by the court, which finally orders the interlocutory judgment) a reference to ascertain whether actual admeasurement or partition can be made, after a decision of the referee as to the rights of the parties under the issue and before the judgment declaring such rights.

The 6th finding of fact, does not conform to the requirements of § 1619, in that it does not find and decide “whether a distinct parcel of the property can be admeasured and laid off, to the plaintiff, as tenant in dower, without material injury to the interests of the parties” It is not sufficient that one of the parties would be injured by an actual partition. The rights of all parties are to be looked after and protected, and if a division of the land cannot be made without material injury to the interests of all the parties, a sale may be had. Here there is an especial reason why a sale should not be ordered if it can reasonably and fairly be avoided. The plaintiff has a very slight interest in a property of very considerable value given to it by improvements made by defendant in which plaintiff has no dowable interest. The defendant has considerable claims by way of judgment against the plaintiff, which should be paid out of plaintiff’s interest in these lands or otherwise. The plaintiff is insolvent. A sale might result in a serious injury to a manufacturing industry, and to defendant’s stockholders without corresponding advantage to plaintiff. The defendant, therefore, has a right to demand that its interests, as well as plaintiff’s, should be considered before a sale is ordered of the lands in question.

We conclude tnat the interlocutory judgment should be reversed, and that the Special Term proceed to appoint a referee or commissioner to ascertain whether plaintiff’s dower can be admeasured by actual partition. The defendant should have costs of this appeal to be paid by plaintiff.

For the same reason it follows that the order denying defendant’s motion for the appointment of a referee'or commissioner to admeasure plaintiff’s dower or to ascertain whether it could be admeasured should be reversed, and said motion granted and the court at Special Term will appoint such referee or commissioner under these decisions upon due and proper notice. No costs are allowed upon the appeal from the order.

Hardin and Follett, JJ., concur.


text:
    People of the State of New York, Resp’ts, v. Calvin L. King, Appl’t.

      (Supreme Court, General Term, Fourth Department,

      Filed November, 1886.)
    1. Civil and public rights — Colored people — Places of Amusements —Unlawful Discrimination.
    A skating rink to which tickets of admission are sold, is a place of amusement, and it is unlawful in the use of it to discriminate against colored persons.
    1. Same — Legislature has power to control.
    The legislature has power to control and regulate property held for a public or quasi public use and the authority it exercises as to the admission of colored people to a skating rink does not deprive the owner of his property nor of its use.
    Appeal from judgment of the Court of Sessions of Chenango County.

      E. H. Prindle, for appl’t; Geo. A. Haven, Dist. Attorney, for resp’t.
   Boardman, J.

The defendant, who is one of the owners of a skating rink, refused to sell to three .colored persons tickets of admission on a certain evening, when a large number of persons were' admitted thereto for the purpose of amusement- and as spectators; the refusal was upon the sole ground that such applicants were colored. For this act the defendant was indicted, tried, convicted and sentenced to pay a fine of $150, and costs.

The jury under the charge has found that the skating rink was a place of amusement such as is contemplated in § 388, Penal Code, that, the defendant was the owner or manager of the rink within the statute, and that he excluded Breed, Wyckoff and Robbins from said rink by the reason of .their color. These-conclusions can not be subjects of doubt irrespective of the verdict. An attempt is made to argue that a refusal to sell those parties tickets, is not an exclusion of them from the rink. But we think the objection hypercritical and untenable. It may, however, have properly been submitted to the jury to determine, as was done, and in that case the verdict of the jury would conclude us.

The case upon the facts is then brought directly within section 388 of the Penal Code, and the conviction is right, if that section of the code is binding as law.

It is claimed that the section is unconstitutional. On a question of so much gravity, the briefs of counsel are very lean. The appellant cites the dissenting opinion of Mr. Justice Field in Munn v. Illinois, 94 U. S. B,., 149, and the People ex rel. King v. Gallagher, 11 Abb. N. C., 187. The respondent’s counsel cites on authority whatever. It is claimed that the section is void because it prescribes that a skating rink, owned as private property, shall be devoted to the use of colored people; but that is not a just statement. The law gives to every citizen certain civil rights, from which he shall not be excluded by reason of his race or color. His rights to the equal enjoyments of such accommodations, facilities or privileges, as are furnished by innkeepers, or common carriers, or by owners or managers of theaters, or other places of amusement are among the number. The owner of property has devoted it to a purpose in which the public has an interest, for a consideration the public are admitted to its enjoyment. On payment of a reasonable compensation, citizens are entitled to its use without distinction by reason of race or color. The privilege may be withdrawn by diseon-tinuing the use. Munn v. Illinois, 94 U. S., 113. The rule of legislative right has been sanctioned in case of railroads. Cent. R. R. v. Green, 86 Penn St. 421, Railroad Company v. Brown, 17 Wall., 446. In the People ex rel. King v. Gallagher, 93 N. Y., 438, it was held by a divided court that the city of Brooklyn had a special law, by which separate schools for colored children were provided, and that such special law was not abrogated by Ch. 863, of Laws of 1873. A colored man may not be excluded from jury duty Ex parte Virginia, 100 U. S. R. 339, Strauder v. West Virginia, id. 303. But the Penal Code, sec. 383, does not infringe upon the U.S. Constitution or laws. It carries the principle too far, as this defendant now claim*, and deprives the owner of the free use of his own property; that, however, is a power inherent in every sovereignty. The sovereign power may regulate the use of one’s property with reference to the public welfare. Under the constitution and laws we may fairly say that no discrimination may be allowed against colored people in the use of certain property of a public, or quasi public character. Places of amusement are made such property by the Penal Code. The legislature possessed the power to control and regulate property held for public use, and the authority exercised in the present case does not seem to us to deprive the owner of his property, or of its use, so as to be obnoxious to the restraints of article 5, of the Amendments of the Constitution of U. S., or of sec. 1, art. 1 of the Constitution of this State. It is simply a rule of conduct as to its use. Numerous cases of somewhat similar legislation will readily occur to their mind.

The appeal papers do not show a judgment in due form from which an appeal could be taken. But as the elements of a judgment are there, we have thought best to consider the case on its merits and as if on-an appeal from a regular judgment.

For the reasons stated, we think the conviction and judgment should be affirmed.

Hardin, J., concurs; Follett, J., not voting.


author: By the Court.

text:
    Andrew McClure, Appl’t, v. New York Central & Hudson River R. R. Co., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December, 1886.)
    NEGLIGENCE — CONTRIBTJTOBY.
    The plaintiff, while standing on defendant’s track at the end of one of the ties, bent forward so that the back part of his body protruded toward the rails, and while in this position he was struck by one of defendant’s engines, which was moving at low rate of speed, and injured thereby. Held, that the injury to plaintiff was caused by his own negligence.

      B. R. Heyward, for appl’t; Harris Rudd, for resp’t
    The plaintiff’s work was at a forge which stood on the north track of the bridge over the Hudson river at Troy. The south track was entirely completed and was being constantly used, locomotives passing every five minutes. Plaintiff and all the workmen had orders to look out for locomotives and to keep off the track. He left his forge on the north track, and crossed oyer on to the south and running track. In going over he looked both ways for locomotives and saw an engine at Green Island and another on the Troy side about the entrance of the draw. He stepped over on to the south track, and stood on the extreme southern end of one of the ties of that track, in a leaning position, with his left hand on his knee, looking down and talking with a man who was on a scaffold suspended below the tracks, at work riv#ing. In about two seconds after he reached the tie he looked up and down and saw two engines. The one at the east of him at the time he saw it last was about 30 or 40 feet from him. Plaintiff did not look again, but stood there twenty-eight seconds without looking when the engine either struck him or frightened him so that he sprung out from the ties ten or fifteen feet,- and fell upon some timbers on the water below.
    The locomotive protruded about six inches over the rails so that there were at least twelve inches between the locomotive and the plaintiff if he had not leaned over.
   By the Court.

We have examined the evidence in this case and there can be no doubt as to the facts. We think that the injury which happened to the plaintiff, was caused by his own negligence. The engine was moving very slowly — about four miles an hour. The plaintiff placed himself in a position of danger. He probably thought that, as he was at the extreme end of the tie, the engine would not touch him. And this might have been the case had he not. leaned forward and thus protruded the back part of his body, so that it came within the reach of the engine.

It does not seem to be necessary to go over the evidence in this opinion.

The judgment is affirmed with costs.

Bocees and LeabNed, JJ., concur.


text:
    Jacob Kent, Resp’t, v. Jacob Crouse, 1 ppl’t.

      (Supreme Court, General Term, Fourth Department,

      Filed November, 1886.)
    1. — Pleading — When causes of action peopeelt joined — Code Civil Peoceduee, § 484, Subdivisions 1 and 9.
    Where there were three counts in the complaint the first of which alleged that defendant and one Ellis were co-partners in business at a certain time and that at a certain time Ellis died. That previous to and after the death of Ellis plaintiff did certain work, and expended certain money at the request of the said firm and of defendant with a certain amount in connection with said business. In the second count, it was alleged that K. performed services for defendant at his request and that the claim therefore had been assigned to plaintiff, and the third count alleged that defendant had consented to submit the above claims to arbitration, and after divers hearings, before the arbitrators but before final submission, defendant revoked the submission. That plaintiff had expended a certain amount in expenses in preparing for and conducting said arbitration, for which damages to the amount expended is claimed. Held, that these causes of action were properly joined under either the first or ninth subdivisions of § 4S4, Code Civil Procedure, that they are in no respect inconsistent with each other and that they affect the parties to the action alike.
    2. ARBITRATION — COSTS — ONE REVOKING- AGREEMENT TO ARBITRATE LIABLE for costs — Code Civil Procedure, §§ 2384 — 484 sub ., 1.
    Code Civil Procedure, § 2384, creates against one who revokes an agreement to arbitrate an implied contract to pay to his adversary the costs, expenses and damages incurred prior thereto by reason of the breach of the contract bringing the cause of action under the first subdivision of section 484, Code Civil Procedure.
    At tbe Cortland special term, Aprií, 1886, on demurrer by defendant to the complaint on the ground that causes of action were improperly united in the complaint, the following opinion was delivered:
    Merwin, J. — There are three counts in the complaint. In the first it is alleged that for several years prior to November 16, 1884, the defendant and one Lucy Ellis were copartners in carrying on a farm, that Ellis died on the 16th November, 1884, and the defendant thereafter continued to carry on the farm; that from the 1st day of April, 1884, to December 1, 1885, the plaintiff at divers times performed services and furnished materials and board for men, and expended money, all at the request of the said firm and of defendant, to the amount in the aggregate of $1,488.82, a copy of the account being attached to the complaint, all apparently being connected with the business of carrying on the farm, and part accruing before the death of Ellis, and part after. In .the second count it is alleged that between the 3d December, 1884, and the 18th April, 1885, one Minard Kent performed services for defendant at his request to the amount and value of $75, and that the claim has been assigned to plaintiff. In the third count, it is alleged that on the 8th October, 1885, the plaintiff and defendant made a written submission to arbitration of the claims specified in the first and second counts, the submission being set out in full, that after divers hearings before the arbitrator and on the 6th January, 1886, before the final submission of the matter, the defendant revoked the submission, that the plaintiff was thereby damaged' to the extent of $177.50 in costs and expenses in preparing for and conducting said arbitration, which amount plaintiff claims to recover. Under the authorities, it is well settled that a claim against a defendant, individually on a contract made with him alone, and a claim against a defendant as surviving partner on a contract made with the firm, can be joined in one action. Goelet v. McKinstry, 1 Johns. Cases, 405; Richards v. Heather, 1 B. and Ald., 29; 1. Chittys. Pl., 7th ed., 57; Nehrboss v. Bliss, 88 N. Y., 604, and cases cited.
    The action against the survivor is said to proceed the same as if he were the only one ever liable (1 Wend, 151), and the matter of offset is regulated on that basis. 1 Paige, 445; 13 Metc., 132. It was therefore proper to join the first and second counts. And the fact that a portion of the claim in the first count accrued before the death of the partner and a portion after, would make no difference if it is all to be treated as an individual claim against the survivor. Whether or not the matters before the death and the matters after should be separately stated, is not important on this demurrer, as they could all be joined in one action. The third count is to recover damages for the breach of the agreement of the defendant to submit to arbitration. The revocation was a breach of the agreement (2 Pars, on Cont., 6th Ed., 711; Miller v. Prest, etc., 41 N. Y., 98, 100.) The agree ment is the basis of the cause of action. This count is therefore on contract and can be joined with the others, unless some force is to be given to the suggestion of defendant’s counsel that this cause of action is inconsistent with the others, inasmuch as on this count judgment could only be obtained on application to the count under § 1214, while on the other counts judgment might be obtained without such application.
    Assuming this distinction to exist, it does not, I think, make the causes of action inconsistent within § 484. The cause of action is one thing, and the manner of obtaining judgment another. Legal and equitable causes of action, though calling for different manner of trial, may be joined. (Lattin v. McCarty, 41 N.Y., 107; Sternberger v. McGovern, 56 N.Y., 12). This was under the old Code ; the phrase “ consistent with each other ” ' was not in section 167 of that Code. It first came into the present Code by amendment in 1877, and what it is designed to cover is not entirely certain.
    In the present case, the manner of trial on the different counts is the same. The fact that in case of default the manner of applying for judgment might be different on the different counts, would in no way jeopardize or affect the rights of the defendant. It would be immaterial as to him. That would not be sufficient ground for saying that the causes of action were inconsistent. I am therefore of the opinion that causes of action have not been improperly joined, and that the demurrer should be overruled with the usual leave to amend on payment of costs of demurrer.
    From the order overruling the demurrer, defendent appealed to the General Term.

      O. Porter for defendant, Appl’t; Pierce Stone, for plt’ff, Resp’t.
   Boardman, J.

The interlocutory judgment should be affirmed with costs of appeal upon the opinion of Mr. Justice Mee WIN at Special Term.

I think the causes of action are properly joined under either the first or ninth subdivision of § 484 of Code of Civ. Pro.; that they are in no respect inconsistent with each other, and that they affect the parties to the action alike.

I also think that § 2384 creates against one who revokes an agreement to arbitrate an implied contract or obligation to pay to his adversary the costs and expenses and damages incurred prior thereto by reason of the breach of the contract, bringing the causes of action under the first subdivision “ contract express or implied.” Sec. 484, supra.

If this be doubtful, the claims arise out of the same transaction or transactions connected with the same subject of action under subdivision nine of § 844, and not included under any of the other subdivisions of that section.

No reason is apparent why these causes of action should not be tried and disposed of together. A money judgment is demanded in each case, and proof must be made as to each count of the value of the work, labor, etc., charged to have been rendered in the first two causes of action, and of costs and expenses paid and damages suffered in the third cause of action. It would seem unreasonable that two separate actions should be necessary to determine the rights of the parties where one would be equally effective.

Haedin and Follett, JJ., concur.


author: Barker, J.

text:
    John McDougall and Andrew G. Avery, Appl’ts, v. Mary Nast, impl’d, et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed September, 1866.)
    1. Mechanic’s lien — Liability op the land of a consenting landholder — Laws 1875, Chap. 238, § 1.
    Where a husband contracted with a party to erect a store upon the lang of his wife, and she becoming aware of the erection of the building during the progress thereof, made no objections, it was held, that the building was erected with her consent within the meaning of Laws 1875, Chap. 238, § 1, which provides that if the owner of land consents to the erection of buildings thereon by another, it may be made subject to a lien in favor of those who furnish material and perform labor in the construction of such building, on their complying with the statute relative to such liens.
    2. Same — lien op material men.

      Held, that the plaintiffs having furnished the contractors materials for use in such work, by filing their notice of lien, became entitled to such sums as the contractor was at the time of filing the notice, or might afterwardl receive upon his contract, but nothing more.
    3. Same — Breach op contract.
    The contractor having failed to fulfil the contract, and having received al monies due him thereunder up to the time he ceased work, the husband completed the building at a cost greater than the amount which would have become due the contractor had he fulfilled the contract. Held, that the sums expended by the husband in the completion of the building, after the abandonment of the work by the contractor, cannot be construed as payment to the contractor after the notice was filed.
    An Appeal from a judgment entered on a decision of the Steuben special term dismissing the plaintiffs’ complaint. The action was to establish a mechanic’s lien on a lot of land of which the respondent is the owner, and to foreclose such lien.

      Near & Platt, for the appl’ts; Holliday Bingham, for the resp’t.
   Barker, J.

The respondent is a married woman and the owner of a lot in the village of Hornellsville. Her husband, Philip Nast, made a personal contract with John Feehan to erect a store thereon at the-agreed price of $4,200. Mrs. Nast was not a party to this agreement. Nast advanced to Feehan upon this contract, as the work progressed, $3000 and the building being then incomplete, the contract was changed in some particulars, Nast agreeing to pay an additional sum of $500 when the work was all completed, and the time for completing the same was extended to the 15th of May, 1881. Under the modified agreement, Nast advanced $1,398.98. Thereafter and on the 30th of April, Feehan quit and abandoned the work in an unfinished condition, and Nast completed the same at the necessary expense of $1,226. The trial court also ‘found as a fact that such abandonment was willful and without cause and at that time Feehan had been paid all that was due him by the terms of the contract, and that it would cost to complete the work in compliance with tbe contract a sum greater than would be due under the contract on its full performance. After the terms of the contract were modified, and before the work was abandoned by Feehan, the appellants furnished materials and did work and labor upon the building for Feehan to the amount of fill, and on the 20th of May filed a notice for the purpose of acquiring a lien upon the premises in compliance with the provisions of the statutes, creating liens in favor of laborers and material men.

The trial court also found that during the progress of said work the defendant, Mary Nast, knew that said building was being erected, and it does not appear that she made any objections to the erection of the same. We shall, in disposing of this appeal, regard this finding as being in effect a finding that the store was erected with the consent of Mrs. Nast, within the meaning of. that term as used in section one, chap. 233, of the laws of 1875, which provides that if the owner of land consents to the erection of buildings thereon by another it may be made subject to a lien in favor of those who furnish material and perform labor in the construction of such building on their complying with the statute relative to such liens. Although Mrs. Nast was not a party to the contract under which Feehan did the work, yet, as she consented to the improvement of her property in that manner, a lien would attach thereon in favor of laborers and parties furnishing material, the same as if she had personally contracted with Feehan to erect the store at the price and upon the terms agreed upon in the contract between her husband and Feehan. Burkitt v. Harper, 79 N.Y., 273; Husted v. Mathes, 77 N.Y., 388; Otis v. Dodd, 90 N.Y., 336.

It is obvious that the trial court dismissed the complaint upon the ground that there was nothing due under the contract with Feehan at the time he abandoned the work, and for that reason the appellants failed to acquire a lien upon the respondent’s property. We should treat the ease as if the complaint was dismissed for that reason and as fully made out against the respondents in all other respects. From tlie evidence as set forth in the appeal book, we think it supports the finding of fact that at the time of the abandonment the work was substantially incomplete, and that Feehan had been paid all that was due by the terms of the contract, and that the costs of completion were greater than the sum to be paid on full performance of the agreement, and that Feehan lost no profits on the work he left undone at the time he quit the wbrk. The statute provides that the lien which may be created upon the land and appurtenances, shall be no greater than the price agreed and stipulated to be paid for doing the work and labor as provided in the contract, except where payments have been by collusion with the contractor for the purpose of defrauding parties who were in a situation to create a lien in their favor on complying with the provisions of the statute. Laws of 1873, chap. 439. The plaintiffs by filing their notice became entitled to such sum as the contractor was at the time of filing the notice, or might after-wards receive on account of his contract, but nothing more. He was protected by the statute against the extinguishment of the contractor’s right for payment after notice of the lien. It is only the money which the contractor earns under his contract that is reached by the proceeding authorized by the statute. Rodbourn v. The Seneca Lake Grape and Wine Co., 67 N. Y., 215.

The sums expended by Nast in completing the building after the abandonment, cannot be fairly and justly construed as payment to Feehan the contractor after the notice was filed. He did that only which-the contractor had agreed to do, and until done nothing whatever would have been due him under his agreement. To complete the building, Nast was required to expend twice the sum that would have been due Feehan, had the latter carried nut his contract. To adopt the views presented in behalf of the appellants, would result in enforcing a payment from Nast greater than the sum stipulated in the agreement, which the statute has 'especially provided against. For the reason that Mary Nast gave her consent, that her husband might improve her real estate, the ¡same became subject to the liens provided by statute the same .as if she had personally made the agreement with the contractor •to erect the building thereon. Such were the views expressed ■by the court in the cases cited, and it is the most favorable con:struction which can be given to the statutes in the interest of laborers and parties supplying material, for the improvement of •.the lands of the owner.

Judgment affirmed with costs.

All concur; Bradley, J., not sitting.


text:
    The Buffalo and Grand Island Ferry Co., Appl’t, v. Lewis F. Allen, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed September, 1886.)
    :1. Amendment of pleading on trial — Code Civ. Pro., § 723.
    The complaint alleged that the plaintiff purchased of the defendant a parcel of land, that the defendant executed and delivered a sufficient deed of said lands to the plaintiff for a valuable consideration, that thereafter the defendant wrongfully obtained said deed from the plaintiff before it had been recorded, and destroyed the same. That the plaintiff had demanded the .same of the defendant, but he had refused to deliver it. At the trial, the •plaintiff failed to prove that the defendant executed and delivered the deed 'described in the complaint, and the complaint was dismissed. From the -proofs it appeared that the defendant was the owner of the lands described in the complaint, and there was some evidence tending to prove that the defendant had promised to give and convey to the plaintiff certain lands. Upon .the dismissal of the complaint the plaintiff’s counsel moved for leave to .amend the complaint so as to conform to the proofs, and for a decree directing a specific performance of the parol promise to convey the lands to the plaintiff as a gift. Held, that this was properly denied, the amendment . proposed would have substituted an entirely new and .different cause of action from the one originally pleaded. Under Code Civ. Pro., § 723, power is given to the court upon the trial to correct any mistake in the pleading, and to insert any allegation material to the ease, and to conform the pleadings to the facts proved, provided that the amendment does not change substantially the claim or defense as originally set forth therein.
    An Appeal from a judgment of the Erie County Special Term dismissing tbe plaintiff’s complaint.

      Lewis & Moot, for the appl’t; George Wadsworth, for the resp’t.
   Barker, J.

T think the trial court made a proper disposition of this case, and in upholding the judgment no wrong or injustice will be done the appellant. By the terms of the judgment, all its rights as now claimed by it in this controversy with the defendant are fully protected. The substance of the allegations as set forth in the complaint are, that the plaintiff purchased of the defendant a parcel of land, a description of which is given, but none of the terms of the alleged agreement are set forth therein. It is then averred, that upon a day named, the defendant executed and delivered a good and sufficient deed of the said lands to the plaintiff upon and for a valuable consideration. This averment is followed by the charge that thereafter the said defendant wrongfully obtained said deed from the plaintiff before it had been recorded, pretending that he intended to make some correction thereof, but cancelled or destroyed the same; that the plaintiff has frequently demanded said deed of the said defendant, but he has refused to deliver the same to the plaintiff or state where it may be found, and he now maintains that the said deed does not belong to the plaintiff, and that the plaintiff has no good and sufficient title to said lands or right to use them; that the plaintiff took possession of said lands and dock privileges under the said deed and is now in possession thereof, and has greatly improved the same; and the prayer for judgment is, that the said defendant be required to return said deed to the plaintiff or pay such damages as may be sustained by reason of its destruction, together with all damages caused by his acts in reference thereto, and such other relief as may be proper.

On this appeal it is unnecessary to notice the second cause of action set forth in the complaint. The plaintiff failed to support the allegation that the defendant executed and delivered the deed described in the complaint, and the Trial Court so found as a matter of fact, and dismissed the complaint with costs. When the proofs were all in, it appeared that the defendant was the owner of the lands described in the complaint, but there was some evidence tending to prove that the defendant had promised to give and convey to the plaintiff certain lands, consisting of about one acre, with certain dock privileges on Niagara River, and that the plaintiff went into the possession after such promises, and made valuable and expensive improvements thereon, and at the time of the commencement of the action was in the possession and use of the same, in connection with the operation of the ferry owned and operated by the company. At the close of the proofs the court stated that the plaintiff had failed to maintain its alleged cause of action as set forth in the complaint, and the same should be dismissed. Thereupon the plaintiff’s counsel moved for leave to amend the complaint, so as to conform to the proofs, and for a decree directing a specific performance of the parol promise to convey the lands to the plaintiff as a gift. The application was denied and the defendant excepted. The decision of the court and judgment contains a provision that the complaint be dismissed without prejudice to any action which the plaintiff may bring to enforce any contract it may have with the defendant for the purchase of the lands and premises in controversy.

The amendment proposed would have substituted an entirely new and different cause of action from the one originally pleaded. The court had no power to grant such an amendment on the trial. It was not a case of variance merely between the proofs and the allegations set forth in the plaintiff’s pleading, but it was a case where there was an entire failure of proof. The plaintiff in its complaint stated a cause of action against the defendant, based upon the alleged fact that the defendant had executed and delivered to the plaintiff a complete and perfect deed of certain lands, and the relief sought was to regain possession of the instrument with damages for withholding the same. The substantial questions at issue between the parties were: first, had the deed described ever been executed and'delivered to the plaintiff, and if so, had the defendant the possession of the same and did he wrongfully refuse to deliver it up to the plaintiff. The trial of these issues did not necessarily : involve the inquiry whether the defendant had the title to or ; any interest in the property, nor whether he was under a legal or equitable obligation to convey the premises to the plaintiff. It was not in any sense a litigation over the title to the lands or in whom the same was then vested. Upon the facts charged • in the complaint the defendant was guilty of a tort, and the plaintiff could have maintained an action at law for damages only, or an action in replevin to regain the possession of the deed and for damages also. If the complaint had been amended in the particulars proposed, then the cause of action would have been for the specific performance of an oral promise on the part of the defendant to give and convey to the plaintiff a parcel of real estate. Allowing the amendment, the cause of action would have been substantially changed, and if a judgement had then been in the plaintiff’s favor it would have been upon a determination of issues wholly different from those set forth in the original complaint. Under Sec. 723, power is given to the court upon the trial to correct any mistake in the pleading and to insert any allegation material to the case, and to conform the pleadings to the facts proved, provided, that the amendment does not change substantially the claim or defense as originally set forth therein. Brown v. Leigh, 49 N. Y., 81; Bockes v. Lansing, 74 N. Y., 437; Niag. Co. Nat. Bank v. Lord, 33 Hun, 557; Dezengremel v. Dezengremel, 24 Hun, 457; Fisk Pavement Co. v. Evans, 37 N. Y. S. C. R., 482; Affirmed on Appeal, 60 N. Y., 640.

These and other authorities lay down the rule that the power of the court to grant amendments upon the trial by conforming the pleadings to the facts proved, is restricted to such amendments as do not change substantially the cause of action or defense. If the power to amend upon the trial was unrestricted, parties might be compelled to litigate matters of which they had no notice, and for which they would be unprepared on the trial and injustice might thereby be done.

But supposing we are mistaken in our views, that by the amendment proposed it would be substituting one cause of action for another, then we are still of the opinion that the trial judge acted wisely in declining to allow the amendment. It was discretionary with the trial judge whether he would do so or not, and his refusal to allow the plaintiff to amend its complaint is not re viewable if this court is satisfied that he did not abuse the discretion vested in him. Richtmeyer v. Remsen, 38 N. Y., 206; McGraw v. Godfrey, 14 Abb. N. S., 397; Hendricks v. Decker, 35 Barb., 298.

It would have been manifestly unjust to have compelled the defendant on this trial to meet and defend a cause of action in its nature and character so widely different from the one set out in the original complaint, where to entitle the plaintiff to relief, the issue to be found and tried would be essentially different and the principles of equity applicable to the case would be altogether dissimilar. In refusing the amendment, we think the learned trial judge did not abuse the discretion vested in him, and, by the terms of the decree, saved to the plaintiff any right of action which it may have of the nature and character which some of the evidence tended to prove.

Judgment affirmed with costs.

All concur.


text:
    James McKechnie et al. v. Frank Spike, Edwin S. Gates, George Spike, Woodworth M. Perry and James Rackham. James Rackham v. Woodworth M. Perry.

      (Supreme Court, General Term, Fifth Department,

      Filed September, 1886.)

    1. Promissory rote — Default — Order opening — Proper case for.
    The plaintiffs were the owners and holders of a note made by the defendants E. S., E. S. &. and G. S., payable to the order oí the defendant, W. M. P., who endorsed the same. The defendant, J. R., appears as the second endorser. A suit being instituted against all the makers and endorsers, and personal service having been made upon all except W. M. P., the makers having suffered a default, judgment was entered against them, and the action continued against the indorsers. W. M. P. being a non-resident, an attachment was procured against some of his property at this time. I. D. S. took an assignment of the judgment and note and released W. M. P's. property, and entering judgment against J. R., issued execution against his property. In the meantime personal service was made upon W. M. P., and J. R. having become the purchaser of the judgment and demand, entered judgment against W. M. P. upon his default in answering. Upon this judgment, suit was commenced against W. M. P. in the State where he resided. After the assignment of the judgment and note lo J. R., he procured an ex parte order substituting him as plaintiff, and he appeared as such in perfecting the judgment against W. M. P.
    It appealing by the evidence that at the time of the assignment of the judgment and note to J. R. that the agreement was made that J. R. should not proceed against W. M. P. in the pending suit, but that it should be treated as if J. R. had paid up the note, and a suit should be commenced at once to determine whether J. R. could collect from W. M. P. as first indorser of the note, there being an agreement between J. R. and W. M. P. that the former should stand in the position of first indorser as between themselves. Held, that a case was made for opening the default of W. M. P., and that the circumstances disclosed constituted a sufficient excuse for not making the motion for that purpose at an, earlier date. That without determining whether it would be proper for J. R. to be substituted as plaintiff, good faith required him upon the application to state fully the history of the case.
    2. Same — Extent of injunction contained therein.
    The order setting aside the default contained a provision that the proceedings taken by J. R. to enforce said judgment so set aside or enforce the collection of the note were set aside and annulled, and that the plaintiff and his agents were restrained from taking steps for the collection of said demand by said judgment or in any manner enforcing the same. Held, that this was simply a restraint against the enforcement of the judgment entered by default.
    An Appeal from an order of the Monroe special term, setting aside a judgment entered against the defendant Wood-worth M. Perry, on default for not answering, and also setting aside an order, substituting James Rachham, as plaintiff, in the action as first above entitled. The plaintiffs were the owners and holders of a note, dated February 25, 1885, for the sum of 1550, made by the defendants, Frank Spike, Geo. Spike and E. S. Gates, payable to the order of the defendant, Woodworth M. Perry, who endorsed the same as did also the defendant James Rackham, whose name appeared as the second endorser. The appellants commenced a suit thereon, naming all the makers and endorsers, as parties defendant, and procuring a personal service upon all excepting the defendant Perry. After the expiration of time to answer, the makers of the note having suffered a default, judgment was entered against them, and the action continued as against the endorsers. The defendant Perry being a non-resident, an attachment was procured against him, and some property in which he had an interest, was seized thereon. At this time Isaac D. Seeley purchased from the plaintiffs the judgment, and took an assignment thereof, and of the note upon which the action was founded, and released Perry’s property from the attachment, and caused judgment to be entered against Rackham on his default, and issued an execution against his property upon which a levy was made. In the meantime, personal service of the summons had been made upon Perry, and Rackham thereafter became the purchaser of the judgment against the makers, and of the demand, and Perry having neglected to answer, judgment was perfected against him by default, and an exemplified copy of the judgment was procured, and a suit commenced thereon against Perry in the courts of the State where he resided. After Rackham took an assignment of the judgment and of the cause of action, he procured on an ex parte application, an order substituting himself as the plaintiff, and in perfecting the judgment against Perry, his name appears as plaintiff.

      Henry M. Field, for appl’ts; John Grillette, for the resp’ts.
   Barker, J.

The defendant Perry claims that judgment was entered against him in violation of an oral agreement made with Rackham after he became the owner of the judgment and the note in suit. Perry also claims, that as between himself and Rackham, the latter stands in the relation of first endorser, in pursuance of an agreement between themselves, and that his position is that of an accommodation endorser for Rackham, in whose interest the note was negotiated. In support of the first contention, we think the proofs and the circumstances are in a measure the strongest on Perry’s side of the question. It is obvious that Seeley intervened in the interest of Perry and took an assignment of the claim, that Perry’s property might be be released from,the attachment. When the negotiations were had with Rackliam for a sale of the judgment and the note, Perry was present, and he and Seeley both state in their affidavits that Rackham agreed not to proceed against Perry in the pending suit, and that with a view of determining the controversy whether Rackham could enforce the note against Perry, it should be treated as if Rackham had paid up the note, and he should commence a suit at once in the courts of this State to recover from Perry as the first endorser of the note, and in that manner determine the question in dispute. Perry and his attorney both say that it was the intention to have appeared in that action, and to contest the question whether a recovery could be had against him for the benefit of Rackham, who had become tbe owner of tbe demand. A suit was commenced by Rackbam on tbe very day be took an assignment, in which Perry appeared. In tbe assignment made by Seeley, there is a clause in these words, “ and it is further agreed that nothing herein contained shall be in anyway construed to effect, change, modify or release any of the rights or liabilities of any or either of the parties hereto.”

A case was made for opening the default. Notwithstanding the denial set forth in the opposing affidavits, we think the Special Term fairly used the discretion vested in the court in such matters, and we can find no satisfactory reason for reversing its action. The circumstance that Rackham had commenced an action upon the judgment in another State is no bar to granting the motion, and should have but little consideration in disposing of the case. The circumstances as disclosed, and the history of negotiations had between the parties, constitute a sufficient excuse for not making the motion at an earlier date. When Rackham applied to be substituted as plaintiff, good faith required from him a full statement of the history of the case, and to make mention that he had commenced a suit against Perry, and the object of that suit, that the court could better determine whether he should be substituted or not, as the plaintiff therein. In view of the form of the order which we shall make on affirming the order appealed from, we shall not at this time determine whether, upon all the facts as now disclosed, it would be proper to allow Rackham to be substituted as plaintiff.

The appellant claims that the order of the court setting aside the default, contains a provision in the nature of an injunction order, restraining Rackham from proceeding to enforce the note against Perry in the pending action, and bases the same upon the following clause of the order: “ that all or any proceedings taken by the said plaintiff Rackham, to enforce said judgment so set aside, or to enforce the collection of the note mentioned in the moving papers thereunder, be, and the same are set aside, vacated and annulled, and that said plaintiff and his attorneys, agents, and servants be, and are hereby restrained and enjoined from taking any steps for the collection of said demand, by said judgment, or from in any manner enforcing the same.” This is simply a restraint against the enforcement of the judgment entered by default, and we cannot believe that it was the intention of the court' to restrain a prosecution upon the note, and the language used is not susceptible of such construction in view of the nature of the question presented to the court for its adjudication.

The order appealed from is modified by striking from the same •the words following the word “ annulled,” including the words “ enforcing the same,” as modified, affirmed with $10 costs.

Smith and Bbaduby, JJ., concur; Haight, J., not sitting.


text:
    George Bellman, Appl’t, v. The New York Central and Hudson River Railroad Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed September, 1886.)
    1. NEGLIGENCE — RELATION OP CARRIER AND PASSENGER.
    The plaintiff, a member of a military organization, went as passenger of the defendant in one of its cars from R. to B., tickets being procured for their return to R. During their stay at B. the car was run upon a siding, and one end of it rested for some distance on a bridge crossing a street below, the car being without the depot ground.
    In the evening the car was lighted and the doors unlocked, though no one was left in attendance. The plaintiff and his companions entered the car and took seats therein. The train to which this car was to be attached arrived in the depot late, and on its arrival its conductor entered the car in which plaintiff was seated and requested the occupants to alight and assist him in pushing the car on to the main track in order to attach it to the train. To avoid the danger of getting off between the car and the train the plaintiff stepped down on the other side, and in so doing fell through the bridge to the street below. Held, that assuming that the relation of carrier and passenger did not exist at the time the conductor came to the car and took control, it might reasonably be held as a matter of law that such relation was resumed as to those persons holding tickets to R. the moment he ordered the car to be moved. The evidence tended to establish the defendant’s negligence, and it was a question for the jury whether the plaintiff was guilty of contributory negligence. His action in leaving the car at the request of the defendant’s agent could not be said to be altogether voluntary, it is the duty of a conductor to exercise the greatest care for the safety of the passengers.
    2. Same — New trial — Error to grant.
    The plaintiff having obtained a verdict, a new trial was granted upon the ground that when the plaintiff boarded the car it was outside of the depot grounds, and that there was not sufficient evidence to justify the jury in reaching the conclusion that there was an agreement or consent by the railroad company that the plaintiff might occupy the car in the place where he found it, and that the plaintiff took all the hazard of his conduct in occupying the car before he was invited to do so by the company. Held, error, as the plaintiff’s right of recovery is not made to depend upon that question.
    An Appeal from an order of the Monroe special term granting the defendant’s motion for a new trial on a case containing exceptions. The action was tried at the Monroe circuit and the plaintiff recovered a verdict of $2,000.

      Baines Bros, for the appl’t; Edward Harris for the resp’t.
   Barker, J.

The plaintiff in alighting from one of the defendant’s passenger cars fell through the openings in a bridge over a highway upon which the ear was standing and received severe injuries to his person. He claims that, at that time, he was a passenger on the defendant’s road and rightfully in the car and. that the injuries which he received were caused by the negligence and carelessness of the conductor in charge of the car. The evidence bearing on the questions of fact, which the plaintiff was required under the pleadings to maintain, is undisputed. If from the proofs the jury were justified in reaching the con~ elusion, that the conductor was guilty of negligence which caused the accident and the plaintiff himself was not guilty of contributory negligence, then I think the verdict should be sustained, as I am unable to discover any error in the rulings of the learned trial judge, of which the defendant has reason to complain.

The facts may be briefly stated. The village of Brockport is about twenty miles west of Rochester and the line of the defendant’s road passes through both places. The plaintiff resides in Rochester and is a member of a military organization whose head-quarters were in that city where most of the other members also reside. This company had arranged to give a-public entertainment in Brockport. The members were sufficient to fill one ordinary passenger car. One of their number, Mr. Yost, acting as committee man for all, engaged of the defendant passage for all the members of the company from Rochester to Brockport and return. The fare paid was the regular fare for each member of the company, and before leaving Rochester the same was paid and a return ticket was delivered to Mr. Yost for each member of the company including the plaintiff. A car was assigned to the company in which they were carried to Brockport in the forenoon of the day on which the exhibition was to be given. On arriving in Brockport the car was detached from the train and run upon a switch. After the exhibition was over, the members of the company were carried back to Rochester in the same car, which was attached to a passing freight train which left Brockport after midnight. At the latter place there is a depot with the usual safe and convenient accommodations, with waiting'rooms for passengers, and is located about 230 feet east of Main-street, over' which the railroad crosses on a bridge some twelve feet high. ■ In front of the depot the main track passes some twelve feet from the platform. To the south of the main track and seven feet therefrom, there is a side track which crosses the bridge west of the depot and intersects with the main track. In the morning after the members of the company left the car it was switched upon a side track and run to the west of the depot so that the west end of the car for some three or four feet of its length rested upon the trestle of the bridge. There were openings in the bridge at or near the end of the car and no guards in that section of the south side of the bridge, and the outer space of the car was very near, if it did not over-lap, the side of the bridge. The members of the company were guests at a hotel on Main-street, north of the bridge and near the depot, and the exhibition given by them was in a room in the village south of the bridge and the railroad tracks. As early as 10 o’clock in the evening the car was lighted and the doors unlocked, without any person on the part of the railroad company being present and in charge of the same. The depot building was lighted, the waiting rooms opened and the telegraph office was open and the operator present. It was arranged by the railroad company that the military company should return to Rochester that evening in the same passenger car attached to a freight train which passed Brockport soon after the exhibition was over. The car conld be seen, and that it was lighted could also be observed by persons passing along the street under the bridge as well as from the hotel where the plaintiff and his companions were guests. On their way to the hotel and while there, the plaintiff and others observed the location of the car, and that it was lighted. About the time the train was due most of the members, if not all, of the company, including the plaintiff, passed from the hotel on to the platform of the depot and across and up the track to the car and took seats therein. The train was an hour late in arriving at the depot and stopped in front of the same so that the rear car was about opposite of the place where the passenger car stood. At this time the plaintiff was seated near the west end of the passenger car. The conductor of the freight train came to the west end of the passenger car which rested upon the bridge, opened the door and said, so as to be heard by the plaintiff and others “ Boys, come out and give us a shove; shove this car on to the.main track, so I can bitch on.” The plaintiff, immediately arose from his seat, went to the door, and, as he testified, saw the freight train moving on his right hand side, and fearing he might be hurt if he got off on that side of the car he stepped down the steps on the other side and as he stepped off he went through or over the side of the bridge and fell a distance of some twelve feet. The car was moved to the switch and attached to the train.

On the question whether the plaintiff and his companions were permitted by the defendant to occupy the car while it stood upon the switch before the arrival of the freight train, Mr. Yost, the committee man for the company, testified in substance as follows: “ that when I contracted for the transportation it was arranged that the car was to lay there, at Brockport, for us and as soon as we were ready to move we were to take the car; Smith, the agent for the company, said, if I remember right, that the car was at our service and he would telegraph to the baggage man or whoever had charge of the car there at Brockport to hitch us on to the first train that would bring us back to Rochester; he said that there would be a man there who would tell us whenever we were ready to return^ or we should report ourselves to the authority there and that he did notify the agent at the depot that they were ready to move.”

The defendant did not give any evidence upon the trial except as to the nature and extent of the plaintiff’s injuries. I think from this evidence, the jury were justified in the facts that the conductor was guilty of improper conduct and negligence wbieb caused the plaintiff’s injuries and that he was free from any contributory negligence.

The evidence fairly established, and such was the opinion of the trial judge and he so instructed the jury, that the passenger car as it stood upon the side track was outside of the depot grounds. The legal questions presented will be examined as if such was the fact. In determining whether the verdict should stand or not, it may be assumed that the relation of carrier and passenger did not exist at the time the conductor came to the passenger car and took the control and management of the same. But the moment he ordered the car to be moved, I think it may be reasonably and fairly held as matter of law that the relation of carrier and passenger was resumed, as the company intended to carry the persons holding tickets back to Rochester in that car. The conductor made no request that the car be vacated by the passengers and no objection was made to their remaining in their seats while the ear was being moved so that it could be attached to the train. The plaintiff became a passenger as soon as he came to the depot building for the purpose of being carried to his home in Rochester, for which place he had a ticket, and was entitled to the care and protection which law requires carriers of persons to bestow upon their patrons. The question is not whether plaintiff took a seat in the car with or without the consent of the defendant. But the inquiry is, whether at the time he received his injury the conductor had taken charge of the car and the plaintiff as a passenger had placed himself under his care. If the plaintiff had received injuries while passing from the depot building to the car, or while in the car before the conductor assumed control of the car, a very different question would be presented.

The conductor in ordering the car to be moved acted as the agent of the R. R. Company, and the plaintiff did not terminate the relation of carrier and passenger by attempting to assist the conductor as requested. It was the duty of the conductor to know the situation of the place where he asked the passengers to alight, and if it was not safe and secure for them to do so to inform them of the fact. The eviden ee tended to, if it did not conclusively establish, the defendant’s negligence. It was clearly a question for the jury to say whether the plaintiff himself was guilty of any negligence or carelessness which contributed to the injuries which he received. He was invited by the defendant’s, agent to leave the car at the place where he did, and it cannot be said that his action was altogether voluntary. Passengers on board of cars are largely under the direction and control of the conductor, and it is his du,ty to exercise the greatest care and caution in providing for their safety. Hickey v. Railroad Company, 14 Allen, 429; Sweeny v. Railroad Company, 10 Allen, 368; Hulbert v. N. Y. C. R. Co., 40 N. Y., 145.

Ad examination of the exceptions fails to disclose any error of which the defendant can complain.

The learned trial judge granted a new trial, as appears by his opinion printed in the case, for the reason that when the plaintiff boarded the car it was outside of the depot grounds and there was not sufficient evidence to justify the jury in reaching the conclusion that there was an agreement or consent by the railroad company that the plaintiff might occupy the car in the place where he found it, and that the plaintiff took all the hazard of his conduct in occupying the car before he was invited to do so by the company. As already stated, I do not think the plaintiff’s right of recovery is made to depend upon that question.

The order appealed from reversed and anew trial denied with costs.

All concur.