author: Titus, Ch. J. Hatch, J.

text:
    William D. Slacer, Pl’ff, v. The Field Engineering Co., Def't.

      (Superior Court of Buffalo, General Term,

      Filed July 14, 1893.)

    Master and servant—Negligence—Assumption oe risk.
    Plaintiff, while at work examining the bearings of an engine which was being erected by defendant, and standing upon a step between it and a large fly-wheel, slipped upon some oil which the machinery had thrown on the step and was thrown upon the wheel and injured. There was no guard about the step. Plaintiff had only been at work on this engine for eight or ten days, was not a mechanic, but had worked more or less on other machinery and engines. Held, that the danger was not so obvious that it could be said that plaintiff assumed the risk thereof, and as it could have been easily obviated by defendant the question of negligence was one for the jury, and a non-suit was error. 1
    Motion for new trial on exceptions ordered heard at the general term in the first instance after a non-suit.

      Quinby, Meads & Rebadow, for pl’ff; C. S. Crosser and C. N. Bushnell, for def't.
   Titus, Ch. J.

The defendant, the Field Engineering Company, is a corporation, and was engaged in building the Buffalo Electric Street Railroad. It had charge of putting in the machinery and electric apparatus in the power house of the railroad company in this city. The work of the defendant was in charge of J. B. Graven, its agent. It had erected and put in place a large upright engine, and a fly wheel, twelve feet in diameter, which made 125 revolutions a minute. This fly wheel was placed within about twenty-two inches of the bedplate, on which rested the engine. Between the fly wheel and engine was a step, attached to the bedplate, eleven inches wide and three feet long. This step was provided for the operator to stand upon while oiling the machinery, and making necessary examinations to keep the bearings cool. This work required the workman to bend over, and reach with his arms to feel of the bearings and make necessary examination of the machinery. There was no guard around this step, or other appliance to prevent slipping while the workman was engaged in his duties. Oil was thrown from the "crank upon this step when the machinery was in motion, and it was part of plaintiff’s duty to keep this step free from oil. A portion of the fly wheel was let down below the level of the floor about four feet, forming a pit beneath the step. The lugs or fastenings of the wheel, when in motion, came within nine and one-half inches of the step. An iron or brass rail was placed around the wheel, forming a guard, and the step was attached to the posts holding up the guard rail. The plaintiff was twenty-eight years old when the accident occurred, and had been employed in his present capacity eight or ten days. He was not a mechanic or skilled workman, but for a number of years had worked more or less about machinery and engines, but had never worked upon an engine of this kind. He received no instructions from any one about running the engine, and was not cautioned in any way about anything connected with his employment. On the 9th day of March, while he was standing upon the step, bending over, feeling of the centre bearings, his foot slipped, and he fell, and some portion of the fly wheel struck him, injuring his leg so severely as to require amputation. This action is brought to recover damages for the injury thus received. On the trial, after the plaintiff had rested his case, the court, on motion of defendant’s counsel, granted a non-suit, and ordered the exceptions to be heard in the first instance at the general term.

The question presented by these facts is, is the plaintiff, in any view of the evidence, entitled to maintain this action ? The question is a serious one, and by no means free from doubt. The learned judge, in directing a nonsuit, assumed that the defendant was guilty of negligence, but concluded that the dangerous character of the machinery was as apparent to the plaintiff as to the defendant, and that the former took the risk of such perils as were incident to the employment, and could not recover for the injury.

From the numerous cases, involving many different conditions and states of facts, the courts have evolved a few clearly defined and well-recognized rules applicable to cases involving the liability ■of the master for injuries received by his servant while employed in using dangerous tools and machinery. It is the duty of the master to use reasonable and proper care in supplying his servant with safe and proper tools and machinery with which to work. He is required to provide him a reasonably safe place in which to perform his work. Then the servant assumes the risks incident to his employment, and the master is not liable if he is injured. The servant is required to use reasonable care in performing -his work, but this presupposes the performance by the master of his duty to do all that is reasonable within his power to -protect the servant while so engaged. It is those risks, alone, which cannot be obviated by the adoption of reasonable measures of protection by the master that the servant assumes; and when the servant is made acquainted with the dangerous character of his employment, and of the place where he is called upon to work, if he takes employment with a full knowledge of its character and dangerous surroundings, and receives an injury, he is held to be without remedy. The cases cited below illustrate the rule sufficiently for our purpose. Booth v. Railroad Co., 73 N. Y., 40; Pantzar v. Mining Co., 99 id., 371; Probst v. Delamater, 100 id., 266; Hickey v. Taaffe, 105 id., 26 ; 6 St. Rep., 426; Bulkley v. Iron Ore Co., 117 N. Y., 645; 27 St. Rep., 978.

Measured by these rules, has the defendant, in this case, exercised reasonable and proper care in obviating the risks of the plaintiff’s ■employment, and not unnecessarily exposing him to danger ? Should it be required to do anything more for the safety of its workmen ? A guard could have been placed around the fly wheel, or over the pit, or even around the step upon which he was required to stand while in the performance of his work, at a very little expense, either of which would have been a perfect protection from the danger to be apprehended from the fly wheel. The learned judges have expressed these rules in varying language. In one case it was said: “It is the general rule that the dangers connected with such a business (employment with dangerous machinery) which are unavoidable, after the exercise by the master of proper care and precaution in guarding against them, are risks incident to the employment, and are assumed by those who accept employment under the circumstances. But those dangers which are known and can be mitigated or avoided by the exercise of reasonable care and precaution on the part of those carrying on the business, and injuries from which happen through neglect to exercise such care, are not incident to the business, and the master is generally liable for damages occurring therefrom. For instance, if the servant puts himself in the way of dangerous machinery, with knowledge of its character, or places himself in the way of bodies moving in their accustomed orbit with irresistible force, and is thereby injured, it will generally be regarded as the result of his own carelessness; but if he is engaged in a business which may be safely carried on, according to the degree of care and caution used in prosecuting it, but, by omission of such care, may become hazardous to human life, it is the duty of those carrying on such business to adopt all reasonable precaution to avoid the occurrence of such danger.” McGovern v. Railroad Co., 123 N. Y., 280; 33 St. Rep., 416.

It may be said that a servant has no cause of action against the master for injury resulting from the negligence of the master, when the servant’s negligence contributed to the happening of the injury, and where he has full knowledge of the dangerous risks of the service, and no recovery can be had for an injury received solely from the hazard incident to the employment, because he assented to the employment with full knowledge, and assumed the risk, and his want of care for his personal safety, in taking such a dangerous employment, amounts to contributory negligence. Laning v. Railroad Co., 49 N. Y., 534. But can it be said, as a matter of law, from the facts in the case before us, that the plaintiff’s negligence contributed to the injury? He went to the place provided by the master to perform his service. He was acting strictly within the line of his duty when injured, and, while attempting to perform that duty slipped and fell, which could not have happened if a rim or guard had been placed around the step on which he was standing. Is the evidence of plaintiff’s negligence so conclusive that the court can say, without the aid of a jury, that his carelessness caused or contributed to the injury ? Gan it be said that the injury occurred “ solely from the hazard incident to the service,” and not from a cause which could have been foreseen and guarded against by the exercise of proper care and prudence on the part of the master ? It is difficult, from the evidence, to see in what particular the plaintiff’s carelessness or misconduct contributed to the accident; and it seems to us that the question was for the jury to determine, as, from the evidence, they might properly have found him free from negligence. In Pantzar v. Mining Co., the plaintiff was injured by the falling of rock from a cliff overhanging the place where he was employed. The rock had cracked and separated some time before the accident; and the court held the defendant liable, notwithstanding the plaintiff could see the dangerous condition of the rock, because the defendant had not used proper care and precaution in bracing the rock, or taking other adequate means to protect the servant in his employment. Chief Judge Ruger, in writing the opinion of the court of appeals, says: “ The very fact that the material was likely to fall apon and injure the defendant's servants at unexpected times imposed upon defendant the duty of inspection, and frequent and careful examinations, and, upon the discovery of any indications of danger, to adopt all suitable precautions to protect its servants from danger. The rule that the servant takes the risk of service presupposes that the master has performed the duties of caution, care and vigilance which the law casts upon him. It is those risks, alone, which cannot be obviated by the adoption of reasonable measures of precaution by the master that the servant assumes.”

It may be pertinent to inquire whether the defendant, in this case, has omitted to take sucli reasonable precaution in providing a safe place for the servant to perform his labor as the law requires. In granting the motion for a nonsuit the trial judge assumed that the defendant was guilty of negligence, in failing to properly guard the fly wheel which injured the plaintiff, but placed his ruling upon the ground that the risk assumed by the plaintiff was as apparent to him as to the defendant, and that the injury which the plaintiff received was one incident to his employment,, and for which he was responsible. This ruling presupposes that, the defendant had discharged its duty to the plaintiff by the exercise of due care in providing reasonably safe appliance and place in which to perform his work. The rule invoked by the learned judge is undoubtedly correctly stated by him, but its application to the facts of this case we do not think had any force, because the servant assumes such risks only after the master has used due care and precaution to guard the former against danger, Pantzar v. Mining Co., supra. It was assumed that the defendant' had been derelict in that respect, and it at least presented a question for the jury; and if they were satisfied from the evidence that the defendant was negligent in not providing suitable safeguards to protect its employes in the performance of their work, so far as it could be reasonably done, it still left the question of the plaintiff’s negligence to be determined. The facts bearing upon this question may be briefly summarized: The plaintiff had worked somewhat about engines and machinery, but never upon this particular kind of engine. He was not a skilled workman, and but little accustomed to machinery. He had been employed in hiá present capacity eight or ten days. He had never received any instructions about the management of the engine, nor had his attention been called to the dangers attending his employment. It may well be that he did not know that the spattering of oil upon the step made his work more hazardous, and his liability to injury greater by reason of it. Certainly, if his attention had been called to that fact, he may very well have been either placed upon his guard to avoid slipping, or refused to work there until some steps had been taken by the defendant to protect him against such an occurrence, and insure his safety.

Of course, it must have been apparent that if he fell into the wheel he would be injured, but it was not so apparent that if he got upon the step, which the defendant had provided for him to stand upon to perform his work, he would slip and fall into the wheel. Could the risk which he took have been “avoided by the adoption of reasonable measures of precaution by the master ? ” If it could have been, then the rule stated by the trial judge could have no application until the master had taken such reasonable precaution as the law requires of him for the protection of his servants. It would seem, therefore, that whether the defendant had used the care required of it should have been submitted to the jury, and the correlative proposition, the plaintiff’s want of care, should likewise have been passed upon by the jury. It cannot, we think, be said, as matter of law, that the plaintiff assumed, the risk of his employment, in the absence of finding that the defendant had discharged the duty which the law. imposes upon the master. The evidence of the plaintiff’s experience was proper to be submitted to the jury upon the question of his negligence; but it was not conclusive, and, like any other fact, it was still the province of the jury to determine the question.

In granting the motion for the nonsuit the court relied upon the case of Hickey v. Taaffe. From an examination of that case, it does not appear that any new rule of law was enunciated. It was the application of well established and recognized principles governing cases of this kind to a new state of facts. The plaintiff had been employed in the defendant’s establishment for six weeks, in feeding a roller machine for ironing collars. She accidentally got her finger caught in a button hole, and, before she could extricate it, her hand was drawn between the rollers and badly burned. The injury was purely accidental; not caused by any want of care of the master in providing safe and suitable machinery or a safe place in which to work. The injury was the inevitable result of getting the finger caught in a button hole, which could not in any way be attributed to the machine, or want of care in applying proper guards to protect the operator. The accident was incidental to the employment, and one which, in law, the servant assumed. We do not think the case is at all decisive of the question here raised; and except as a general statement of the law, and an additional precedent, it has no greater force or application to the facts before us than many other cases found among the decisions of our court of appeals. Here the plaintiff stepped on a greasy step, which, with but slight expense and trouble, could have been rendered perfectly safe. The injury was not incident to the employment, in the sense that it might be expected to happen if the proper precaution had been taken by the defendant. It will hardly be claimed that the master may require his servants to climb over greasy, dangerous machinery, or in dangerous places, without first providing such safeguards as would, with the exercise of reasonable care on the part of the employe, enable him to perform his work in a reasonably safe place. 1 cannot agree with the trial judge in his statement of the facts of the plaintiff’s knowledge of the situation and character of the machinery. It is true he had some knowledge, but it seems to me it cannot be said that he had the same perfect knowledge of all of the dangers of the machine as the master, nor did he know, as well as the master knew, the precautions necessary to be taken to protect himself against injury. If he had had such knowledge this accident could not have happened, and, under the facts of this case, the rule that the servant, with full and complete knowledge of all of the facts surrounding his employment, assumes the risks, for the reasons stated, has no application.

The authorities cited by the counsel for the defendant do not vary the principles already stated. Hickey v. Taaffe has been referred to. In Shaw v. Sheldon, 103 N. Y., 667; 3 St. Rep., 679, the injured party, a foreman, a skilled workman, having full knowledge oí the situation, and the dangers surrounding him, fell into the rollers of a machine; and the court held that he assumed the risk of his employment. In Clark v. Barnes, 37 Hun, 389, the injury was claimed to have been caused by falling on a slippery floor. The court, at general term, say that the floor was not slippery, and the cause of the accident must be looked for elsewhere than from a slippery floor. When the proof leaves it in doubt whether the injury was inflicted by negligence the case is not made out. In Loftus v. Ferry Co., 84 N. Y., 455, a child six years old stumbled and fell from a bridge leading from the ferryboat to the pier. Guard rails were properly constructed, and millions of people had passed over the bridge without accident. The court held that the defendant was bound to provide safe and suitable accommodations for the landing of passengers, but the law does not impose upon the defendant the duty of so far providing for passengers that they shall encounter no possible danger, and that the facts in the case refute the inference that the accident was likely to occur; and in determining this question the court gave weight to the fact that the child was not in charge of its mother when she received the injury. In Buckley v. Manufacturing Co., 23 St. Rep., 618, the court held that the injury did not result from a dangerous machine, but because of a mere accident from slipping and falling, and no amount of instruction or caution would have prevented the accident, and saved the servant from injury; that the injury did not come from any ignorance of machines, or of the danger to which he was exposed, but solely from the accident. This view of the evidence was concurred in by all of the judges taking part in the decision, and the court held the plaintiff was not entitled to recover. In Sweeney v. Envelope Co., 101 N. Y., 520, the machine was an old machine, in perfect repair. The plaintiff understood its use as well as the defendant; and the court held the master was not bound to furnish his employes with new machinery of the best pattern and appliances, but that the plaintiff, under such circumstances, assumed the risk incident to its operation. And the case of Kern v. Refining Co., 125 N. Y., 50; 34 St. Rep., 363, is in line with the Sweeney case.

In the case at bar, we think the proximate cause of the accident was the want of a guard around the step on which the plaintiff was required to stand while performing his work, or around the fly wheel. It was a dangerous place to work, and the defendant should have obviated the danger, as far as possible, by providing some means to guard the plaintiff, and protect him from injury; and the question should have been submitted to the jury under proper instructions from the court. The nonsuit should be set aside, and a new trial ordered, with costs to abide the event of the action.

Hatch, J.

The evidence presented by plaintiff would have authorized the jury to find that he was in fact unacquainted with the engine, in its construction and method of operation, and that he was placed at work upon it without knowledge or instruction of the dangers attending the work, except as the same was open and apparent to the ordinary workman. I am not prepared to adopt the view that the liability to injury, such as was received by plaintiff, and the manner of its infliction, was so apparently obvious that the plaintiff can be said to have assumed it. The step from which he slipped was eleven inches wide. This was apparent, and he assumed what risk there was in its use as a step. But the working of the engine covered it, from time to time, with oil, of which it may safely be assumed plaintiff had no knowledge before he entered upon the performance of his duties. This circumstance created a dangerous step; and while plaintiff was doubtless chargeable with knowledge that if he came in contact with the fly wheel he would be injured, yet I do not think, as matter of law, that he was chargeable with knowledge that the step would be rendered slippery and dangerous by the action of the engine. At least, he would not have been so chargeable when he entered upon the performance of his duties; and whether the knowledge which he thereafter acquired, in the short time he was at work, sufficiently apprised him of the danger, in the view "taken, presents a question of fact, and made a case for the jury, considering all the circumstances. That the place was not reasonably safe seems clear. That it could be made safe without difficulty, or detriment to the working of the engine, seems equally so. Its unsafe condition was known to the master, and its foreman suggested how it could be made sáfe. Within the authorities of Pantzar v. Mining Co., 99 N. Y., 368; Davidson v. Cornell, 132 id., 234; 43 St. Rep., 887; McGovern v. Railroad, Co., 123 N. Y., 280; 33 St. Rep., 416 ; and many others, I am of opinion that this case presented a question for the jury. Nothing is found in conflict with this view in Hickey v. Taaffe, 105 N. Y, 26; 6 St. Rep., 426. The whole question turns upon whether the danger was so open and obvious that plaintiff took the risk. The facts of that case admitted of no other conclusion. The facts here, for reasons stated, admit of the conclusion that the attendant risks were not so obvious and open that. the case can be disposed of as a question of law. The conclusion is, therefore, reached that the exceptions should be sustained, and the motion for a new trial granted ; costs to abide the event.


source: Caselaw Access Project

author: Hatch, J.

license: Public Domain

text:
    Henry L. Pfeffer, Resp’t, v. The Buffalo Railway Co., App’lt.

      (Superior Court of Buffalo, General Term,

      Filed July 14, 1893.)

    1. Negligence—Street railroads.
    Plaintiff endeavored to board an electric car by the front platform, when the car was suddenly started and he was thrown down, run over and injured. The car was stationary at the time, and the view in the direction from which plaintiff came was unobstructed. Held, that these circumstances warranted an inference that a proper discharge of his duties would have apprised the motorman of plaintiff’s approach, and that a refusal to charge that defendant was not chargeable with negligence if the motorman was not aware of plaintiff’s presence was not error.
    2. Same—Duty to look eor passengers.
    Defendant’s servants are not relieved from the duty of looking for persons wishing to board the car while at a full stop by the fact that the place is not a regular stopping place and a stop there is against the rules of the company, where it appears that cars were frequently stopped there and the public had no notice of the rule.
    3. Same—Coktbibutoby negligence.
    An attempt to board a stationary car by the front platform is not negligence per se.

    4. Same—Damages.
    Plaintiffs injuries necessitated the amputation of both feet. He was 36 years old at the time, and was only capable of earning §8 a week. Held, that a verdict of §11,620 was excessive.
    5. Appeal—Notice.
    A notice of appeal from a judgment which states that “ appellant intends to bring up for review upon such appeal the order * * * denying motion for a new trial herein on the judge’s minutes ” is, in effect, a notice of appeal from the order also, and is sufficient for that purpose.
    Appeal from judgment in favor of plaintiff, entered upon verdict, and from order denying a motion for a new trial made on the minutes.

      C. S. Crosser (Clarence M. Bushnell, of counsel), for app’lt; E. T. Durand (Geo. W. Cothran, of counsel), for resp’t
   Hatch, J.

There is discovered in the record conflicting testimony, but not more so than is usually present in negligence cases, nor is it so serious in conflict as many cases of this character present. Taking the undisputed matters and the finding of the jury, the following facts must be deemed established: On Sunday morning, about nine o’clock, on August 30, 1891, plaintiff arrived at the corner of Balcom street and Harvard place, for the purpose of taking a Harvard place car, to be transported thereon to Buffalo park, where he was employed by a sewer contractor to watch tools. Hear Harvard place is situated defendant’s stables and storage sheds for its cars. The motive power upon defendant’s cars running out Harvard place at this time was electricity, applied, by means of the trolley system, to cars formerly propelled by horse power, and in no wise changed, except that the electrical machinery had been placed thereon ; but the cars themselves, in the structural part, for the carrying of passengers, remained unchanged, as did also the appliances for entering and alighting therefrom. Both the front and rear ends were open and unprotected by gates or other appliance, and presented the open ordinary step of a horse street car. On the morning in question, two cars propelled by electricity, supplied in each case by a motorman and a conductor, ran-from the storage shed onto the Main street track, and from there switched onto the Harvard place track. The surroundings were theseBetween the switch and the corner of Balcom street and Harvard place is a cross walk, nearly in front of “Sargent’s saloon,” so called, from forty to forty-five feet distant from the corner of Harvard place. Upon the last-named corner stands Stemler’s saloon, and across the street from that, on the northwesterly corner, is a greenhouse. The intervening space between Stemler’s saloon and the cross walk is a clear open place, with no obstruction to shut off the vision. Plaintiff established by five witnesses, including himself, that he arrived at the corner about nine o’clock in the morning, and stopped in front of Stemler’s saloon to wait for the car; that the two cars came from the shed, and were switched onto the Harvard place track, and ran to the cross walk, where the first car stopped, the other car stopping about seven or eight feet in its rear; that the cars remained stationary three or four minutes at this point, and, while so standing, plaintiff walked from in front of Stemler’s saloon, across the open space, to the car, took hold of the iron in front of the dash hoard, on the front end of the car, placed one foot upon the first step, and, while drawing his body up, the motorman suddenly started the car, which gave a shock or jerk. Plaintiff was thrown off his balance, fell to the ground, and his legs coming between the front and rear wheels of the car, were run over by the latter, and were so injured that amputation of both feet became necessary. It was further shown, and, under instruction from the court, the jury have found, that the crosswalk where this car stopped was a place where the cars frequently stopped for the purpose of discharging and taking on passengers. The defendant gave evidence by three witnesses tending to establish that the car in question did not stop at the crosswalk on this morning, but continued in motion until after the happening of the accident; and by two witnesses, that plaintiff attempted to board the car while in motion, and, failing to secure a firm hold, was thrown under the car. As before observed, this evidence is conflicting, and the jury have negatived defendant’s contention. So far as plaintiff’s witnesses were concerned, there is little, if anything, beyond the testimony of defendant, above noted, which tends to discredit them. Three of them were former employes of defendant at the time of the accident, and two of them had voluntarily left its service after. Under what circumstances the third left the case does not disclose. All that appears is that at the trial he was not in the employ of defendant. The two witnesses first noted sat but a short distance from the place of accident, and in plain view of it. The third was the motorman of the hind car. He did not see plaintiff when approaching the car, but saw him as he was getting on; was positive the car was then stationary; saw it start; and saw plaintiff fall. The fourth witness stood in front of Stemler’s saloon, in plain view of the whole transaction. There was an attempt made to contradict the testimony of plaintiff’s witnesses, or some of them, by showing that defendant’s attorney, a short time after the accident, talked with them, and reduced their statements to writing, which were signed by them, in which they said the car was in motion when plaintiff attempted to board it * but the witness was unable to identify with certainty but one witness, Collins, who was defendant’s witness, while the written statement was not produced, and its absence was unaccounted for. There is, therefore, nothing which would justify the court in disregarding the testimony of these witnesses, or from which we can say that they are in any view discredited. Applying ordinary rules, there is a fair preponderance of testimony in favor of plaintiff’s theory.

It is, however, claimed that the undisputed testimony fails to show that defendant was guilty of negligence. This claim is supported by the following suggestions: That the motorman was in his proper place, and that plaintiff gave him no sign that he desired to or contemplated taking the car; that the motorman did not in fact see plaintiff until he was in the act of falling, and that there was nothing in plaintiff’s actions prior thereto which conveyed or ought to have conveyed to the motorman’s sense that he was intending to take the car, and that as this place was not a regular stopping place for the car, and it was in fact a violation of the rules of the company to stop there, no obligation was,, therefore, imposed to look out for passengers at this place, which fact, as well as the fact that the corner where plaintiff first stood was not a regular stopping place, was, or at least ought to have-been, known to him; that the manner in which the car was-started was not shown to be negligent, or that it was done in an unusual or unskillful manner. The testimony showed that plaintiff walked from Stemler’s towards the car. The space was open. When he walked towards the car, he walked towards the motorman, and there was nothing requisite for the motorman to discover him other than to use his eyesight. Nothing distracted his attention. There was no need of a signal, as the car was stationary, and it does not appear that the motorman was making any move to start it. When plaintiff reached the car, it was motionless ; and when he took hold of the rail of the car, and stepped upon the step, he was brought to within two or three feet of the-motorman. All of these circumstances were before the jury, and upon them the court submitted the question to the jury, did the motorman see the plaintiff, or, if not, ought he, in the proper discharge of his duties, to have seen him, and known of his attempt to board the car ? It needs no argument to prove that these circumstances authorized the jury to draw the inference that a proper discharge of duty would have apprised the motorman of plaintiff’s presence and desire to take the car before it was started. The next suggestion is not supported by the testimony. Plaint-tiff’s proof tended to establish that this cross walk was a point where the cars frequently stopped, and that passengers were taken tip and left off at that point, and the motorman, Coventry, stated that he had stopped there a hundred times for that purpose, and he thought it was known to the motorman and conductor of this car; while Schabell testified that the barn boss, Phillips, ordered him to stop his car there, and this latter statement stands uncontradicted.

The court also submitted this question to the jury, and the jury negatived defendant’s claim. Whether stopping at this point was in violation of defendant’s rules was a mooted question. Two of plaintiff’s witnesses stated that it was in violation of defendant's rules to stop there, while Coventry testified that he knew of no» such rule; that it was never called to his attention; and that, in fact, at this time there were no rules for running these motor cars at that place. But, if it be conceded that stopping at this point was in violation of defendant’s rule, I do not see that defendant is aided. The fact that they did stop there, and take on and let off passengers, is, as we have seen, established. If such rule existed, there is not a particle of evidence to show that plaintiff had notice of it either actually or inferentially. No proof was given to show that it was posted in a car, or in a place where passengers would be likely to see it, or any means whatever adopted to bring it to the attention of passengers. While it is doubtless true that passengers are bound to observe reasonable rules and regulations, yet, before they can be bound, therule must in some manner be called to their attention in such a way that they may know, or be chargeable with knowledge, of its existence. Railway Co. v. Wilkinson, 30 Md., 224. A continued violation of defendant’s rule by its employes, instead of being notice to a passenger that a rule is being violated, may become, on the contrary, an assurance to the passenger, upon which he may rely, that what is proper to do is being done. The fact that the car also stopped at the corner in no manner detracted from the force of the fact that it also stopped on the cross walk. It is matter of little moment whether the car was started in the usual or in an unusual manner, whether skill was used or the reverse; the vice „of the action lies in starting it at all before the passenger had reached a place of safety. It has long been the settled law that, where passengers are getting on or alighting from cars propelled by steam, to suddenly start the car, thereby endangering the safety of the person, without giving warning, is an act of negligence. Keating v. Railroad Co., 49 N. Y., .673. And this rule has been applied to street cars propelled by horses. Poulin v. Railroad Co., 61 N. Y., 621; Maher v. Railroad Co., 67 id., 55; Morrison v. Railroad Co., 130 id., 166; 41 St. Rep., 248 ; Akersloot v. Railroad Co., 131 N. Y., 599; 43 St. Rep., 290. Stronger reasons exist for applying this rule to cars propelled by electricity than to horse cars, as the motive power is more sudden and powerful in its operation. The jury were authorized to find that the act of starting threw plaintiff off, and produced the injury.

It is also argued that plaintiff was guilty of contributory negligence in attempting to board this car by the front platform. The testimony tended to establish that it had been customary for passengers to leave the cars, when propelled by horses, at either end of the car, with the sanction of those in charge. It was stated by Coventry that this custom continued after the application of ■electricity. The cars used were the same horse cars, with a different motive power. Doubtless, if a person were injured in .attempting to board or leave a car by the front platform, custom would not alone protect him; whether negligent or not would be dependent upon the surrounding circumstances. It furnishes a circumstance to enable the court and jury to find the fact; but I know of no rule of law, and am cited to no authority, holding that an attempt to board a stationary car by the front platform is negligence per se. It is doubtless competent for a jury to find that, under given circumstances, it constitutes negligence, or for the court to so determine. As applied here, I think it presented a question of fact. We must bear in mind that this was a place where passengers were frequently taken on and let off. Such condition imposed upon the defendant and its agents aq active, affirmative duty to properly protect all passengers. So long as the car stood still, it was as safe to board it by the front end as the rear end. That it would so stand until plaintiff could reach a place of safety was a matter upon which he might rely. Under ■such circumstances, it would be a harsh rule to characterize his act as negligent, when his position was only rendered dangerous by the negligent act of defendant. The charge of the court, upon special request of defendant, was more favorable than it was entitled to on this point. Upon this proposition, it is sufficient now to say that, upon the evidence and the favorable charge, the jury have found for plaintiff, and the evidence and circumstances are sufficient to support their finding. Briggs v. Railway Co., 148 Mass., 72.

But one exception is urged upon our attention, and that relates to a refusal to charge. The request was: “ I ask the court to -charge the jury that the defendant is not chargeable with negligonce if the motorman started the car while the plaintiff was attempting to board it by the front platform, if he was not aware ■of the plaintiff’s presence there.”

This request was properly refused. It is seen at a glance that the request limits defendant’s liability to the knowledge, of the motorman, thus entirely excluding any consideration of the circumstances which tended to show that, if the motorman had properly discharged his duty, he ought to have known of plaintiff’s presence. Such rule, if adopted, would have permitted the motorman to have been guilty of gross dereliction of duty, whereby he placed it beyond his power of being cognizant of plaintiff’s presence, and then allege such negligence as a defense because thereby he was deprived of knowledge of plaintiff’s presence at the car. The court had already charged fully and favorably to defendant upon that proposition, and the discussion already had disposes of the question adversely to defendant. Mo other exceptions are argued, and our own examination discloses no error in any that were taken.

While the conclusion is reached that no error exists in the record, we are convinced that the damages awarded are excessive in amount. The plaintiff’s position in life is quite moderate in circumstances. He was only capable of earning eight dollars per week, as a watchman of tools used about the building of a .sewer. His age was thirty-six years, and, under the rule provided by the Northampton tables, his probable duration of life would be 12.377 years. If we assume that he would work each day for the remainder of his life upon this basis, he would possess an earning power equaling $5,863.54. Taking the earning power of this sum, as fixed by supreme court rule 71, pleasured by the probable duration of life, would produce $3,186.35. This, added to the principal sum, makes $9,049.89, as the amount which the continuous exertion of the plaintiff would produce. To this must be added the expense incurred by reason of the injury, appearing in the record to be $330. This, added to the previous sum, makes a total of $9,379.89, as the amount of injury sustained so far as the same affects plaintiff’s earning power, upon the ordinary basis used in determining the value of estates. The court does not overlook that compensatory damages are not limited to the sum named, nor can they be accurately ascertained; but taking into account all the other elements-recognized by law, and being conscious of the uncertainty attendant thereon, we think that the sum of $11,620.11 for these elements is excessive in amount, measured by plaintiff’s capacity and his walk in life. We are, therefore, constrained to reduce-the recovery to the sum of $5,000, believing thereby that justice will be more nearly attained. The order will, therefore, be that-the judgment appealed from be reversed, unless the plaintiff,, within ten days after the entry of the order herein, serve upon the-defendant or his attorney a written notice accepting said sum as; damages herein, in which latter event the judgment and order appealed from are affirmed, without costs to either party in this court.

Since the above was written, plaintiff’s attorney has filed with-the court a supplemental point, claiming that defendant has not appealed from the order denying the motion for a new trial, and that this court is without power to review the facts. We do not-deem the point well taken. Section 1300, Code Civil Procedure, provides that an appeal must be taken by serving upon the attorney of the adverse party and the clerk with whom the judgment or order is entered a written notice to the effect that the appellant appeals from the judgment or order, etc. It seems clear that no-particular form of language is requisite. If the words used are, in effect, a notice that the order made is sought to be reviewed, it-is sufficient. The notice in this case states first the appeal' from the judgment. Then it states: “And appellant intends; to bring up for review, upon such appeal, the order dated the 25th day of October, 1892, denying defendant’s motion for a new trial herein on the judge’s minutes.” The notice specifies-, distinctly the order, and if the word “ appeal ” had been substituted for “ intends,” the notice would be strictly within the section, although happier phraseology could have been used. It is-enough to say now that the intention is apparent; plaintiff has not been misled ; and, in effect, it is a notice of appeal from the-order. The following authorities support this view. Hymes v. Van Cleef, 39 St. Rep., 810; Van Ingen v. Snyder, 24 Hun, 83. Result as heretofore indicated.


author: Lawrence, J.

text:
    In the Matter of the Application of Charlotte Ewer for Writs of Habeas Corpus and Certiorari.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    Constitutional law—Penal Code, § 292—Children.
    Section 292 of the Penal Code, which prohibits the employment or-exhibition of a child under fourteen as a dancer, is not unconstitutional as; inf ringing on the rights of parents or those of the child.

      Appeal from an order dismissing writs of habeas corpus and certiorari, which were granted to review the legality of the detention of the appellant, she having been arrested upon a warrant .and taken before a police magistrate in the city of New York, charged with a misdemeanor in violating § 292 of the Penal Gode by unlawfully exhibiting, using, procuring and consenting to the exhibition of her daughter, Mildred Ewer, aged seven, as a dancer in the Broadway Theatre, in said city.
    Charlotte Ewer, the appellant, was arrested upon a warrant, and taken before a police magistrate in the city of New York, June 16, 1892, charged with a misdemeanor in volating § 292 of the Penal Code, by unlawfully exhibiting, using, procuring and consenting to the exhibition of her daughter, Mildred Ewer, aged seven, as a dancer in the Broadway Theatre in said city. She demanded an examination, upon which the charge was fully sustained, and she was thereupon held to await the action of the grand jury in default of $500 bail. Immediately, writs of habeas corpus and certiorari were issued out of this court. The warden returned the body of the prisoner with the commitment, and the magistrate returned the complaint, warrant of arrest, and testimony taken on the hearing. Thereupon the appellant demurred specially to the returns, alleging that the statute was unconstitutional, and that, upon the conceded facts, no offense had been committed. After hearing argument, Justice Andrews dismissed the writs, and remanded the prisoner, upon the grounds stated in his opinion.

      A. J. Dittenhoefer and David Gerber, for app’lt; De Lancey Nicoll, dist. att’y, and Elbridge T. Gerry, for resp’ts.

       Affirming 47 St. Rep., 501.

   Lawrence, J.

As the only ground assigned for assailing the proceedings before the police magistrate is that § 292 of the Penal Code is in conflict with the provisions of the constitution, I deem it sufficient to say that, under numerous decisions of the court of appeals, the position taken by the appellant cannot be sustained. The opinion of Mr. Justice Andrews, at the special term, fully covers the case, and it is unnecessary to add anything to the reasoning therein contained. It therefore results that the orders appealed from should be affirmed.

Van Brunt, P. J., and O’Brien, J., concur.


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

text:
    The People ex rel. Alice Sanders, App’lt, v. Hugh J. Grant, Mayor, Resp’t.

      (Supreme Court, General Term,, First Department,

      Filed June 30, 1893.)

    Children—'Theatrical exhibitions—Penal Code, § 292.
    Under § 292 of the Penal Code, as amended by chap. 309, Laws 1892, the mayor has no right to license children to sing and dance in theatrical entertainments.
    Appeal by Alice Sanders, the relator, from an order made by Mr. Justice Beach, at special term, denying her application on order to show cause for a peremptory writ of mandamus against the mayor, requiring him to give his consent, under chapter 309 of the Laws of 1892, to the appearance of Zelda Sanders, her daughter, eleven years of age, in a theatrical entertainment at Palmer’s theatre, in which said child was desired to sing and dance.

      Myer J. Stein and Wales F. Severance, for app’lt; William H. Clark and Elbridge T. Gerry, for resp’ts.
   Lawrence, J.

It is too late to question the constitutionality of § 292 of the Penal Code, and of chapter 309 of the Laws of 1892, amending the same.

The opinion of Mr. Justice Beach, at the special term, fully answers all the questions sought to be raised upon this appeal and concurring, as I do, in the views expressed by him, I am of the opinion that the order denying the motion of the relator, for a writ of peremptory mandamus, should be affirmed.

Van Brunt, P. J.

In concurring with the opinion of Mr. Justice Lawrence herein, I think it is proper that a word or two should be said in respect to some points which have been made upon this appeal, and which.do not appear to have been discussed in the opinion of the court below.

Section 292 of the Penal Code reads as follows :

Section 292. A person who employs, or causes to be employed, or who exhibits, uses, or has in custody, or trains for the purpose of the exhibition, use or employment of, any child actually or apparently under the age of sixteen years; or who having the care, custody or control of such a child as parent, relative, guardian, employer, or otherwise, sells, lets out, gives away, so trains, or in anyway procures or consents to the employment, or to such training, or use, or exhibition of such child ; or who neglects or refuses to restrain such child from such training, or from engaging or acting, either

1. As a rope or wire walker, dancer, gymnast, wrestler, contortionist, rider or acrobat; or upon any bicycle or similar mechanical vehicle or contrivance; or,

2. In begging or receiving or soliciting alms in any manner or under any pretense, or in any mendicant occupation; or in gathering or picking rags, or collecting cigar stumps, bones or refuse from markets; or,

3. In peddling, singing or playing upon a musical instrument, or in a theatrical exhibition, or in any wandering occupation; or,

4. In any illegal, indecent or immoral exhibition or practice; or in the exhibition of any such child when insane, idiotic, or when presenting the appearance of any deformity or unnatural physical formation or development; or,

5. In any practice or exhibition or place dangerous or injurious to the life, limb, health or morals of the child,

Is guilty of a misdemeanor. But this section does not apply to the employment of any child as a singer or musician in a church, school or academy, or in teaching or learning the science or practice of music, or as a musician in any concert with the written consent of the mayor of the city, or the president of the board of trustees of the village where such concert takes place.

In 1892 this section of the Penal Code was amended so as to-read as follows:

An act to amend section two hundred and ninety-two of the Penal Code relative to the licensing of children in theatrical exhibitions.

Approved by the Governor April 15, 1892.

Passed, three-fifths being present.

The People of the State of New Yorh, represented in Senate and Assembly, do enact as follows:

Section 1. Section two hundred and ninety-two of the Penal Code is hereby amended so as to read as follows:

Section 292. A person who employs or causes to be employed, or who exhibits, uses, or has in custody, or trains for the purpose of the exhibition, use or employment of, any child actually or apparently under the age of sixteen years; or who having the care, custody or control of such a child as parent, relative, guardian, employer, or otherwise, sells, lets out, gives away, so trains, or in any way procures or consents to the employment; or to such training, or use, or exhibition of such child; or who neglects or refuses to restrain such child from such training, or from engaging or acting, either

1. As a rope or wire walker, gymnast, wrestler, contortionist, rider or acrobat; or upon any bicycle or similar mechanical vehicle or contrivance; or,

2. In begging or receiving or soliciting alms in any manner or under any pretense, or in any mendicant occupation ; or in gathering or picking rags, or collecting cigar stumps, bones or refuse from markets; or in peddling ; or,

3. In singing; or dancing; or playing upon a musical instrument ; or in a theatrical exhibition; or in any wandering occupation; or,

4. In any illegal, indecent or immoral exhibition or practice; or in the exhibition of any such child when insane, idiotic, or when presenting the appearance of any deformity or unnatural physical formation or development; or,

5. In any practice or exhibition, or place dangerous or injurious to the life, limb, health or morals of the child, is guilty of a misdemeanor. But this section does not apply to the employment of any child as a singer or musician in a church, school or academy, or in teaching or learning the science or practice of music; or as a musician in any concert or in a theatrical exhibition ¿ion, with the written consent of the mayor of the city, or the president of the board of trustees of the village where such concert or exhibition tabes place. Such consent shall not be given unless forty-eight hours previous notice of the application shall have been served in writing upon the society mentioned in § 293 of the Penal Code, if there be one within the county, and a hearing had thereon if requested, and shall be revocable at the will of the authority giving it. It shall specify the name of the child, its age, the names and residence of its parents or guardians, the nature, time, duration and number of performances permitted, together with the place and character of the exhibition. But no such consent shall be deemed to authorize any violation of the first, second, fourth or fifth subdivisions of this section.

Section 2. This act shall take effect on the first day of September, eighteen hundred and ninety-two.

The changes in the phraseology are few, and are shown by the italics in the Code as cited.

It is claimed upon the part of the appellants that, under the act in question, the mayor has a right to license children to sing and dance in theatrical entertainments; and our attention is called, for the purpose of aiding us in the construction of the act under consideration, to certain what are called notorious facts in connection with the emendation of the section of the Code in question. It may be a misfortune that the court is entirely unfamiliar with these notorious facts, and hence cannot seme upon them to aid it in the construction of the act.

It is true that this amendment was the result of a compromise between the advocates of different views in reference to the propriety of the employment of children to sing and dance in theatrical entertainments, as claimed by the appellants, and that it was understood that, under this amendment, such employment, as long as sanctioned bj' the mayor or president of the trustees of the village where such entertainment should take place, was permissible. It would seem that the advocates of the restricted right had been more expert in the use of language than were the advocates of the more liberal views; because a very brief consideration of the section, as amended, will show that there is no room for the construction claimed by the appellants.

As has been seen, by § 292 as amended, any person who First, employs or consents to the employment of a child under the age of sixteen years as a rope or wire-walker, etc.; Second, employs or consents to the employment of such child in begging, etc.; Third, employs or consents to the employment of such child in singing; or dancing; or playing upon a musical instrument; or in a theatrical exhibition ; or in any wandering occupation; or, Fourth, employs or consents to the employment of such child in any illegal, indecent, or immoral exhibition, or practice, etc.; or, Fifth, employs or consents to the employment of such child in any practice or exhibition or place dangerous or injurious to the life, etc., shall be guility of a misdemeanor.

The section then goes on : “ But this section does not apply to the employment of any child as a singer or musician in a church, school, or academy; or in teaching or learning the science or practice of music; or as a musician in any concert or in a theatrical exhibition, with the written consent of the mayor of the city,” etc.

Under the third subdivision, above spoken of, the employment of such child in singing ; or dancing; or playing upon a musical instrument; or in a theatrical exhibition ; or in any wandering occupation, is an offense against the statute.

Fow, when the child is to be permitted to appear in certain classes of entertainments, and in a certain capacity in such entertainments, the connection of the phrases is entirely different, although the same words are used to some extent.

For example, in the permissive part of the fifth clause, it states: u But this section does not apply to the employment of any child * * * as a musician in any concert or in a theatrical exhibition,” the word musician ” qualifying both the subsequent clauses of the sentence. But, when they desire to separate the different classes of doings, they use the proper signs. For example, when they desire to separate singing from dancing, they place a semicolon between the two phrases. And when they desire to separate playing upon a musical instrument from appearing in a theatrical exhibition they put a semicolon between them, in order to show that they are independent phrases having no relation the one to the other. But, in the fifth clause, when they come to determine the cases in which the child may be exempt from the general prohibition “contained in the previous part of the section, they specify the name and character of the performance which it was the intention of the legislature to exempt, viz.: As a singer or musician in a church, school or academy ; or in teaching or learning the science and practice of music; or as a musician. Where ? In any concert, or in a theatrical exhibition. This seems to show clearly what was the intention of the legislature, and that the whole permissive part of sub. 5 related to the musical question and nothing else ; and, therefore, the word “ musician ” in the phrase under consideration qualified both concert and theatrical exhibition.

The order should be affirmed, with costs.

O’Brien, J., concurs.


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

text:
    Peter N. Ramsey, App’lt, v. Telemaque T. Timayenis, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed June 30, 1893.)

    Arrest—Fraud—When vacation of order proper.
    The vacation of an order of arrest based on an alleged procurement of moneys by fraud and deceit is proper where it is shown that such moneys were advanced by the plaintiff with intent to go into business with defendant, and that several months after it is claimed that the alleged fraud was discovered, plaintiff wrote to defendant, expressing confidence in his ability and the success of the business and asking assistance in an emergency, without reference to such alleged fraud.
    Appeal from order vacating an order of arrest.
    The order of arrest was granted upon the ground “ that the •action is brought to recover damages for the wrongful conversion of personal property and money obtained by fraud and deceit, and received by the defendant, as agent of the plaintiff, in a fiduciary capacity.” It is admitted that the defendant received from the plaintiff the sum of $4,052, and a note for $365 mentioned in the complaint. The facts which plaintiff attempted to establish were that defendant represented to plaintiff that he was making 55 per cent net profits on the sales in his business, and requested the plaintiff to take an interest therein. This plaintiff declined to do at that time, but stated that as soon as he could make certain financial arrangements he would consider the proposition, provided defendant’s books, upon examination, verified his statements as to profits. Subsequently, the defendant requested plaintiff to furnish money for the purchase of certain book-plates, and it was thereupon arranged that the defendant, as plaintiff’s agent, should purchase these plates for the plaintiff with the plaintiff’s money ; that if the plaintiff should conclude to take an interest in the defendant’s business the plates could be turned in as cash, at their cost price ; that if he should determine not to take an interest in the business they should be sold, and the plaintiff reimbursed from their proceeds. That thereafter plaintiff furnished certain specified sums of money, amounting to $4,052, which was done in each case upon the statement and representation of defendant that certain plates had been furnished, and were ready for delivery, and that the money was needed to pay for them. That not only were the statements as to the profits of the defendant’s business false, and made with a fraudulent intent, but the money which the plaintiff gave to the defendant for the specific purpose of paying for the plates was none of it used for that purpose, and although he had represented to the plaintiff that the money was to be used, and had been used, for the purchase of sixteen specific sets of plates, upon examination only seven sets of plates were found to have been purchased during the time, and those were paid for, not with the money of the plaintiff, but with the notes of the Minerva Publishing Company, and those seven sets of plates belonged to the Minerva Publishing Company. The money which the plaintiff paid was converted by the defendant to his own use. Defendant’s affidavit showed that he had known plaintiff three years. That in June, 1891, plaintiff called at defendant’s place of business (which was the office of the Minerva Publishing Company, a corporation, of which defendant was general manager, and most of the stock of which defendant owned) to inquire concerning the Judd Publishing Company, in which last company plaintiff stated that he had been invited to invest $100,000. Plaintiff claimed to be worth from $300,000 to-$400,000. Defendant said he knew nothing about the Judd Publishing Company, and stated to plaintiff that if he had $100,000 to invest he could not do better than to put it in his company (the Minerva Publishing Company). Defendant then stated to plaintiff that he was cramped for money in his business, and at the end of the interview borrowed $250 of plaintiff, which, with $5 bonus, he returned on June 15th. Thereafter several interviews were had between the parties, during which defendant informed plaintiff fully of the condition of the company’s business ; that its capital of $10,000 was insufficient for its needs, and that he had had to borrow $20,000 from one D. Jannopoulo, of St. Louis, for which the company’s notes had been given, secured by a pledge of defendant’s stock; and that he felt confident that if he could obtain $75,000 additional capital he could greatly extend the business, and make it pay 20 to 25 per cent profit, where it was only paying 15 per cent as it then stood. That thereupon a verbal agreement was made between them, under which plaintiff began to pay money to the defendant. That on July 17, 1891, and after plaintiff had made two payments to defendant (one on July 14, 1891, of §233, and one on July 16, 1891, of §664) defendant wrote plaintiff a letter, which is as follows:
    “ New York, July, 17, 1891.
    “ My Dear Eamsey : Have the kindness, at your earliest convenience, to send me a letter stating terms and conditions upon which you will join me in business. While I fully understand the terms and conditions which we have discussed together many times, I desire to have everything in writing, as your letter may facilitate the settlement that I will have to make with Mr. Jannopoulo.
    “ Yery truly yours, T. T. Timayenis.”
    Then defendant wrote in reply a letter dated July 20, 1891, which is as follows:
    “New York, July 20, 1891.
    “My Dear Timayenis: Your letter of July 17th at hand, and contents noted, and in reply will say: I will give you twenty-nine thousand dollars for forty-nine per cent of the Minerva Publishing Company, and you to retain fifty-one per cent yourself, and the officers of the company to be divided between you and I as we may decide at the proper time; providing you will secure for yourself Mr. Jannopoulo’s interest in the company, and become individually responsible for the same, we to become responsible for all debts of the company, and release Mr. Jannopoulo from all liabilities. When you have done this, then I will come in, and take the management of the finances and supply the same, to your entire satisfaction. You to have charge of whatever branch of the business you wish, and if the company should grow as fast as I think it will, with your and my best efforts, I will loan the company what money it may want up to fifty thousand dollars, at six per cent, until such time as you want to pay me back. Trusting this will give you all the assurance you need of my good faith, and encourage you in the good work you are now doing, I am, Eesp’y yours, P. N. Eamsey.
    “ 32 West 30th St.”
    Upon a copy of this letter defendant wrote: “Accepted. T. T. Timayenis”—and the contract was complete. Thereafter, plaintiff continued his payments under this contract, and every dollar of the money was used in the business. The plaintiff continued his payments until September 4, 1891. During all this time he was at the company’s office at least four times a week. He knew that the plates purchased were being used to print from. He asked for and received copies of the books printed from them. Defendant specifically denied making any of the statements, .representations, or promises claimed by plaintiff, either in regard to the plates, the bfloks, or the business. As to the note for §365, the proceeds of which plaintiff claims defendant has converted, and which plaintiff says “ has been paid in full ” by him, defendant alleged that plaintiff gave the note because he was short of cash; that defendant discounted it with H. H. Brock-way ; that when it fell due, on November 21,1891, plaintiff could not pay it, and requested defendant to take it up. As defendant was liable on it as indorser, defendant, on December 6, 1891, gave plaintiff $300 to pay on the note; plaintiff agreeing to add sixty-five dollars, and take it up. On December 7,1891, plaintiff paid Brockway the $300, which defendant had given him, and on July 12, 1892, plaintiff paid twenty-five dollars more on the note, and the balance of it is still unpaid. After September 4, 1891 (the time when plaintiff claims to have discovered the alleged frauds and misrepresentations of defendant), defendant went to St. Louis, at plaintiff’s request, and obtained a written agreement from D. Jannopoulo, (who held the company’s notes, and also owned some stock), which is set forth in the record, and by which Jannopoulo agreed to wait until October 20th before disposing of his stock; and on defendant’s return to New York, and on September 21, 1892, he wrote a letter to plaintiff, in which he stated the success he had with Jannopoulo, and asked plaintiff to not disappoint him in regard to the $10,000 which plaintiff had promised to pay him before he went. On February 3, 1892, being five months after the discovery of the alleged fraud, plaintiff wrote a letter to defendant, which is as follows:
    “New York, February 3, 1892.
    “ My Dear Timayenis: It is with regret I am compelled to wi'ite this request to you to help me out of my difficulty at this time, for I suppose your business is growing as fast as ever, and ready cash is in great demand with you, as well as with myself. But you have the advantage of me, because you can get around to attend to matters yourself. But, with me being sick as long as I have, as you well knew, and having to depend upon some one else to do everything, there is a great shrinkage and loss; and as I have not sold any of my houses yet, and not being able to get the large one done, on account of my sickness, I am in a big hole, and come to you, as a brother mason, to get you to help me out, and I am sure you will do so with all your heart. I am sorry I could not raise more money last season to put in to help you make your business a great success, for I have faith in your ability, as a scholar, to make the Minerva Publishing Company one of the greatest publishing houses in this country. And now, Timayenis, as a mason, I come to you, as a brother mason, for help, and you must stand by me. Now, if you cannot give me any cash, give me the notes of the Minerva Publishing Company for six thousand dollars, one-half for three months, and one-half for four months; and I can get them discounted at my bank, and give yoti part of the money back for the use of the company. Make out the notes to Mr. jannopoulo or to your order, and he or you indorse them. If, they were made out to Jannopoulo, and he indorses them, there would be no trouble to get them renewed here when they become due if you wanted to. Now, T., for God sakes, help me this time, and some day I will come to your help, like a brother.
    “ I am respectfully yours,
    “ P. K Ramsey."
    Dill, Chandler & Seymour (F. Seymour, of counsel), for app’lt; W. R. Bronk, for resp’t.
   The following is the opinion of the court below:

Truax, J.

I do not think that either party to the action is telling the truth, and, therefore, the better way to do in order to determine whether there is any truth on either side is to take the written statements made by the parties to this action when they were not trying to deceive one another. I refer to the letters of July 17 and July 20, 1891. From those letters it is apparent that the plaintiff's contention herein is no#true, and I cannot accept his statement that those letters were written with the intention of deceiving another person. Those letters contain the contract between the parties.

Order of arrest vacated, with ten dollars costs to abide event.

Van Brunt, P. J.

We from the conclusions arrived at by the learned j udge who heard the motion resulting in the order, and which are embraced in his memorandum contained in the record. There seems to be no question whatever but that the contentions upon the part of the plaintiff are absolutely inconsistent with the statements in writing made by him. The letter of the 20th of July, 1891, in answer to the defendant’s letter of the 17th of July, 1891, is in manifest contradiction to the claims now advanced upon the part of the plaintiff; and it seems to be almost incredible that the plaintiff, after he had learned that he had been swindled in the manner claimed by him upon this application,should have written the letter of the 3d of February, 1892, months after the advances which formed the subject-matter of this action were made.

The order should be affirmed, with ten dollars costs and disbursements.

Follett and Parker, JJ., concur.


author: Pratt, J. Barnard, P. J.

text:
    Adrian Iselin, Resp’t, v. John H. Starin, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    Basement—Right oe way.
    For forty years the occupants of Glen Island have been carried to the mainland by a ferry to Neptune Island, and a road or way on the latter island. Said road was maintained and improved by the occupants of Neptune Island, the occupants of Glen Island contributing thereto. The occupants of Glen Island and all who came thereto used said road as a matter of right. Held, that there was at least an acknowledged private right of way for the occupants of Glen Island and their grantees, and that an injunction would not lie to restrain said grantees or their patrons from using said road to reach their property.
    Appeal from judgment restraining defendant, his servants and patrons from using the ferry between Glen Island and ISTeptune Island, and the floating dock connected therewith and the road leading from said island to the Pelham road.

      Charles H. Roosevelt (W. W. Goodrich, Peter Cantine and Cornelius E. Kene, of counsel), for app’lt; Martin J. Keogh (Calvin Frost, of counsel), for resp’t.
   Pratt, J.

This controversy relates to a road leading from the old main highway, which runs from Pelham to New Rochelle, in Westchester, to a ferry at the tide water on a creek formed by the waters of Long Island Sound as they ebb and flow, opposite Glen Island. It is the approach for the public by land to the present Glen Island ferry. Plaintiff claims that it is a private road and has obstructed it. Defendant contends that it is a public road; and, by way of equitable counterclaim, asks that the obstructions be removed.

The defendant’s Glen Island was formerly known as Locust Island. The plaintiff’s main property is also an island, now known as Neptune Island, formerly called Moses Island. It was originally separated from the main land by a small creek across which a stone causeway was built, so that street cars and wagons now run to, or substantially to, the defendant’s ferry.

The testimony shows that this Moses or Neptune island was owned by William Turpin in 1833, who conveyed the same to Catherine Wyman, who then owned the adjacent mainland. This Neptune island and the mainland then passed to Jacob Rhine-lander through Catherine Wyman’s will and deeds by her executors in 1836 ; this deed conveys the road and causeway in question. The island then passed under Rhinelander’s will to the Underhills in 1837, who conveyed the same with the road and causeway to Philip Underhill in 1850, and the mainland was conveyed to other parties. Philip Underhill then conveyed the island, road and causeway to Isaac Underhill in 1859. Thorne and wife also gave Isaac Underhill a conveyance affecting some part of these premises in 1874, and in the same year Isaac Under-hill conveyed the same to Higgins, who mortgaged to Guión. The mortgage was assigned to Philip R. Underhill, and was subsequently foreclosed and the premises were purchased by this Mr. Underhill, in 1880, who meantime received other conveyances from Mr. Higgins. He, in 1882, conveyed the premises to Fredericks, who conveyed back to Hannah Higgins in the same year, and she conveyed to plaintiff in 1885. Each of these conveyances assumes to convey the road and causeway in question.

The, defendant’s title to Glen island comes from Davenport, who conveyed to Depau in 1847, nothing being said about any landing or road. Depau conveyed to Livingston in 1848, and he conveyed to Godwin in 1854. These Depaus seem to have conveyed to Foulke in 1855, and Godwin conveyed to Foulke on the same day. Foulke then conveyed to Schmidt in 1862. This deed assumes to convey a right of way over the road in question from the old Pelham road to a steamboat landing to be presently mentioned, and the use of the ferry dock as used by the Foulkes’ together with the right to land thereon and the right of ferriage and docking. Schmidt died and his executors in May, 1879, conveyed to defendant, granting like subject matter.

It thus appears that Foulke owned the Glen island and Isaac Underhill, or his estate, owned the Neptune island and the road from about 1858 or 1859, at least until after 1861. During this interval Foulke used this dock for ferry purposes to Glen island as a landing, having a regular ferry propelled by horse power. Foulke and Isaac Underhill contributed to the expenses of keeping this road in repair. Foulke paid him twenty-five dollars, January 26, 1858, as “ his proportion of the expenses or repairs of the causeway and roads.” This fact is attested by Underhill’s receipt which defendant produced. A like receipt signed by Philip B. Underhill for I. Underhill’s estate attests the fact that Foulke January 11, 1861, paid him fifty dollars, “ for his proportion of expenses repairing causeway and bridges for two years to January 1,1861, on Neptune house island.” In 1868 Schmidt, and other owners on Glen island, paid Philip B. Underhill seventy-five dollars, “ being in full to January 1, 1868, for their ■contributions of twenty-five dollars each towards working of the road leading to the steamboat pier on the Neptune house island for the estate of I. Underhill, deceased.”

It seems that Isaac Underhill built the Neptune House on his island, and enlarged the former steamboat dock which stood at the water end of the road. He also had an interest in a steamboat which landed thereat. The precise circumstances under which these payments for road expenses were made do not appear ; but it is plain that the owners of the Glen Island and Neptune Island together kept this road in repair, and it is quite obvious that they used it and this dock in common; the former for ferry purposes, and the latter for steamboat purposes, and as an approach to his Neptune Island property.

There is no intimation that the payments were made as for licenses; on the contrary, they are said to be “proportions expenses” in the earlier receipt, and “ contributions ” in the last one. I think it fair to assume, in the absence of any conveyance of a right of way over this road, and the absence also of any satisfactory explanation, that there was an understanding between these people that they should use this road in common as an approach to this dock. The road was open for the use of the Underhill’s Neptune House guests, and was evidently used by Foulke and Schmidt as means of approach by the dock to the Glen Island property. So, too, it must have been used by the public as an approach to the Underhill steamboat which landed at the dock, and the patrons of Foullce’s ferry.

Perhaps these facts do not necessarily show an unlimited offer of this road to the public as a highway. On the other hand, the evidence shows that when Depau owned Glen Island he and Underhill had some bitter controversy about the location of the dock, in which Underhill had his way about it.

I think, however, that these facts do show that the Glen Island owners, certainly in Depau’s time, had a right of way at the Under-hill dock, and over this road up to the old Pelham road, and the fact is that Depau’s deeds say nothing respecting this right of way. It is certain that the Foulke and Schmidt deeds do assert such a right.

Under these circumstances, especially in view of Foulke’s ferry business, I think this case plainly shows an open user of both the dock and road by the Glen Island owners from 1858 on, under a claim of right, with the knowledge and consent of the Neptune Island owners; and since Foulke’s deed to Schmidt in 1862, such user was certainly under claim of right and color of title which could be conveyed.

We now come to consider another fact of great importance in this controversy. In 1845 Isaac Underhill and his wife and Philip R Underhill filed their petition with the commissioners of the land office of this state, praying for a grant of land under water, for the purposes of enabling them to extend this steamboat dock, and asking to establish a dock thereon with leave to collect wharfage, etc. They therein state that the dock was built by, or, at least, in Catherine Wyman’s time, “ for the convenience of navigation and for the accommodation of steamboats and other craft passing into the bay.” There is no intimation that this use was in any way restricted. This must have been prior to 1836, for she died before that time, and her executors, during that year,, conveyed to Rhinelander.

This petition also states that Rhinelander believed that she had obtained title to the land under water where the dock stood, but that it was subsequently discovered that she had not obtained such title. It also states that this dock or landing is “a great public convenience and necessary for the purposes of commerce, and will greatly increase those objects by extending the dock a little farther into the bay as designated on a map filed. This map shows the road in question.

The petition also states that the contemplated extension of the dock “ will be of great public convenience in a commercial point of view,” and the object of the acquirement of the land was to increase that public convenience by extending it to deeper water so that larger vessels may moor thereat.

The petition also states “ that, to render a landing place convenient at the place now spoken of, and that the public and others may pass from the main island either on foot or in carriages * * * to the contemplated dock; and that for such purpose it will be necessary to build of stone * * * abutment on bridge,” etc.

It thus appears that this road was opened for these purposes by Catherine Wyman prior to 1836 as means of reaching this dock, long before the Neptune House was erected; and that it had reference to public travel between the old Pelham road and this dock for the purposes of commerce as means of enabling the public for business purposes to come to this dock both by land and water, and that there was a business ferry at the dock.

The people of the state granted their patent on this petition. The patent expressly recites that it is for the purpose of promoting the commerce of our state, and for no other object, and the grant was made subject to reservations and conditions expressed; one of which was, that if the patentees should not “ within three years from that date (April 17, 1845), actually appropriate and apply the above described premises to the purposes of a dock or docks thereon ” the grant should be void. There is no pretense that the patentees failed to perform the condition, and they and their grantees now claim the land thus obtained because they thus appropriated that property to that public use.

Under these circumstances I do not see how it can be doubted that the object of the dock and road was to enable anybody who-chose to use it to come and go on the dock and to use the dock itself for all purposes of a dock. Very likely the commerce between the mainland and Glen Island may not have-been in Catherine Wyman’s mind or in the minds of the Underhills to the extent which we now see the development of that island and the business there carried on, but we cannot doubt that that business is within the development of the general object and purpose for which the road was opened and the dock built, and within the purposes of the grant.

I do not now mean to say that this necessarily renders the dock a free public dock, or the road necessarily a public highway. But, under these circumstances, I cannot doubt that the subsequent transactions between Glen Island, Foulke and Schmidt and theUnderhills indicate that the former were then acting in view of existing and conceded rights to -use the road as a means of approach to their property and their business ferry. It thus seems-plain to my mind that there was, at least, an acknowledged private right of way for Foulke and Schmidt and their grantees, and any lawful business to which they chose to devote their property. Hence, it seems to me, that the plaintiff, being one of Underhill’s grantees, has no right, certainly no standing in a court, of equity, to such aid in obstructing this road as a means of preventing the grantees of the Glen Island to reach their property or to carry on their ferry business. If that be true of the grantees-themselves, it must also be true of their patrons.

Plaintiff and his grantors have slept too long upon their claims to expect any aid of a court of equity. Their laches alone seems to me to weigh heavily against their contention on the merits.

Perhaps this conclusion will dispose of the case adversely to the-plaintiff and in favor of the defendant. But since other phases of it are before us, I may not unwisely go farther.

• The fact is distinctly stated in this old petition to the land commissioners that one of the objects of this dock was its public convenience ; and it is plainly intimated, if not alleged, that the object of the proposed extension of the dock, and of obtaining the land grant for that purpose, in part, at least, is to invite the public to pass on foot or in carriages ” over this stone road which was so-necessary. Under these circumstances, while it is possible that the Underhills may all the while have had some dim idea of retaining this road as their private right of way, it seems to me-wholly improbable that they did such a thing. The plain fact was that the more the public used it the better for them and their purposed business scheme. They thus, by their recorded act and their subsequent conduct, clearly evinced their invitation to the public to use the road freely, and their erection of the hotel only emphasized this desire to profit by this public use of the road.

Here, then, was an offer of this road to the public which dates back to 1886, and there can be no doubt, upon this evidence, that the public did use it without interruption, unless by the gate, to be presently noticed.

We thus find an offer of this road to the public, an offer made by Catherine Wyman in 1836, followed by user for public business purposes, confirmed by the Underhills under such circumstances as to indicate the right to the permanent use thereof by anybody who had occasion to use it, followed by a grant from the state which necessarily involved anybody and everybody’s right freely to "come and go over it. I think they were thus •estopped from withdrawing that offer. We think this seems to make out dedication so far as one may dedicate his land to public use for road purposes. This was followed by the formal acceptance of this road by the highway authorities of New Rochelle village. A street railroad has since been laid and has been for Íears used upon it, and all the while plaintiff and his grantors ave .done no significant act. To come now into a court of equity seeking equitable relief seems to me umvarranted.

I am, therefore, unable to see why this road should not be held a public highway, not only by this long use, but by actual dedication and acceptance. Under these circumstances I regard the testimony about the gate as of very little importance. That testimony was very unsatisfactory at best, and it in no way shakes my confidence in the conclusions already stated. The same is true of the notices and declarations of the Underhills about their supposed rights.

These views lead to a reversal of this judgment and to the conclusion that plaintiff is wrong in obstructing this road.

Judgment must be entered for the defendant, with costs.

Barnard, P. J.

For over forty years there has been a ferry by means of which the occupants of Locust Island, now Glen Island, have been carried to the mainland over Neptune Island. During all that time there has been a float maintained by the occupants of Glen Island on Neptune Island, the termination of the ferry. The means of access from the Neptune Island float has been over an old way which passed over Neptune Island and over a causeway to the Pelham road, a public highway. This old road was improved by the occupants of Neptune Island so as to provide better means of approach to a dock on Neptune Island at which steamboats landed for general carriage of passengers to and from Neptune Island, upon which there was a hotel; but the way ■existed long before this causeway was built. There is much doubt whether the part of the way from the Pelham road to the -docks on Neptune Island were public highways ; but there can be none but that the Glen Island occupants and all who came to it and went from it passed, as a matter of right, over this way. As to the question presented it is a matter of no importance, whether the way is public or private. If Glen Island owns a ferry right with a float on Neptune Island and a right of free passage from this float to and from the Pelham road; they should not be prevented by injunction from using it. The right of approach, if it exists, would not be destroyed by the increased number of passengers which now pass over the ferry. The use acquired by prescription was for all who wished to go to Glen Island, and the right is not destroyed because the number of passengers is increased by the ■creation of a place of resort for people in summer to visit for purpose of pleasure and recreation.

I, therefore, concur in the result arrived at by Judge Pratt.

Judgment reversed and judgment ordered for defendant, with •costs.

Dykman, J., not sitting.


author: Barnard, P. J.

text:
    John Sessions, App’lt, v. John D. Elwell, Resp’t. Archibald L. Sessions, App’lt, v. John D. Elwell, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed July 28, 1893.)

    .Specific performance—Agreement to transfer stock of company to BE ORGANIZED.
    Defendant agreed to transfer to plaintiffs stock in a certain corporation which he was attempting to organize. He failed to obtain capital for that purpose, and a similar corporation was organized in West Virginia by another person, in which defendant was interested. Held, that the agreement could not be enforced as to stock in the latter company.
    Appeals from judgments in both actions dismissing the com’■plaints.
    Actions for specific performance of contracts to deliver shares -of stock,

      A. L. Sessions (Jesse Johnson, of counsel), for app’lts; Eustace Conway, for resp’t.
   Barnard, P. J.

The issues in each of these actions are the same. The action is brought by each of the plaintiffs for the specific performance of an agreement under which the defendant agreed to deliver 100 shares of the full paid capital stock in certain corporations, which were expected to be organized through the efforts of the defendant as a promoter. No such corporation was organized as was called for by the agreement between the parties. Another corporation was chartered in West Virginia, and the owner of the patent, Gibbon, transferred the patent right to that company. The question of fact presented and tried was whether the defendant really obtained this West Virginia charter, and in consequence thereof is entitled to the shares of stock provided for by the agreement, which would have been his right had he succeeded as promoter. The trial judge has found that the defendant was not instrumental in forming the West Virginia corporation. It is not disputed but the corporation contemplated by the defendant failed to become an existing one. The new corporation was procured by Luther B. Shinn. Gibbon so testifiesShinn refused to have any preliminary dealings with defendant,, and the new company demanded a transfer of the patents from Gibbon, and in hostility to the contract between Gibbon and Elwell. The fact that the new company was procured to be organized by Shinn, and that it was organized because Elwell was:, unable to organize one for the purpose of using the Gibbon patents ; that the new company was independent of, and distinct from, the one which defendant attempted to create, but failed to-do on account of his inability to procure the necessary capital, seems plainly proven. The defendant was free to enter into new arrangements upon the failure of those made with Gibbon, and under which the plaintiffs had advanced money, but which have-resulted in nothing.

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

Dykman and Pratt, JJ., concur.