author: Bradley, J.

text:
    Rochester and Kettle Falls Land Company, Resp’t, v. R. Irving Davis, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June, 1894.)

    1. Contracts—Knowledge op contents.
    It must be assumed that a party knew what were the terms of a written contract when he executed it.
    2. Equity—Relief.
    Where one party is induced to, and does, execute an instrument upon the faith of the representation that it is drawn in accordance with the understanding of the parties, when in fact it has not been so drawn, he may have relief upon the ground of fraud, if nothing further appears to deny it to him.
    Appeal from a judgment of the supreme court in favor of the plaintiff, entered upon the decision of the court rendered after a trial, and also from the order directing judgment, with notice of an intention to bring up for review on such appeal the interlocutory judgment entered in county clerk’s office on the 21st day of November, 1893.
    Petrie, Timerman & Pardee, for app’lt; James G. Greene, for resp’t.
   Judgment appealed from affirmed, with costs, on the opinion of Bradley, J., at special term.

The opinion at the special term was as follows:

Bradley, J.

—By written contract of date May 7, 1891, made by the parties to it, William C. Waite agreed to sell to the defendant a certain parcel of land situate in the county of Stevens and State of Washington, for the sum of $300, payable as follows : $100 at time of execution of the contract, $100 in six months, and $100 in one year, with interest. The first payment was made, and the purpose of this action is to require the defendant to complete the performance of the contract.

The defendant by his answer alleges:

1. That by the terms of the contract he was permitted to abandon it by forfeiture of the sum paid upon it.

2. That prior to and on May 7, 1892, the said Waite, or his( agents, exhibited to the defendant a contract of which that before mentioned purported to be a copy, and fraudulently represented to him that if he would purchase the property, that by the terms of the contract he would have the right and privilege to cease making payments and to abandon the contract and be relieved from any subsequent payments thereon, and that by such representation he was induced to believe that such would be his privilege and to execute the contract.

The terms of the contract executed by the defendant do not enable the defendant at his election to abandon it and be relieved from the obligation to pay the purchase-money mentioned in it as he has sought to do. The question arises whether, upon the evidence, he may be relieved from it by reason of any mutual mistake of the parties to it or fraud on the part of the vendor.

While the title to the property was in William 0. Waite, it is quite evident the plaintiff was the beneficiary of the title. The plaintiff is a corporation of the state of New York, created for the purpose of “ purchasing, taking, holding and possessing real estate and buildings, and selling, leasing and improving the same,” having its principal business office in Rochester, N. Y. Mr. Waite was secretary of the company. Late in April, 1891, several persons, including some of the officers and directors of the company, the defendant and others, left Rochester on an excursion to the State of Washington to look over the property there, and returned to Rochester on May 16th. The party were at Kettle Falls in that state from the 2nd to the 11th of May, and within that time the lot in question was examined and selected by and for the defendant. Mr. Waite was- not one of the party, and the defendant had no conversation with him upon the -subject of the purchase of the lot, but with Mr. Weaver, the president, and Mr. Aris, the general manager of the company, who were in the party, he did talk upon the subject, and they said in effect that whoever made a contract for the purchase of any of the land at Kettle Falls would have the right to abandon the contract and be relieved from making future payments, and on such election would forfeit the payments before then made upon the contract and any improvements in the meantime made upon the premises.

The inference is fairly justified that the defendant then understood that such would be his privilege if he entered into contract for the purchase of any of the land.

On or about the 29th day of June, 1892, the defendant received by mail at Little Falls, N. Y., his place of residence, the contract in question, executed in duplicate by William 0. Waite, and he on that day executed both and returned one of them by mail to Waite, and. retained the other in his possession. The contract so executed did not in its terms express or give the defendant the optional right to relief from performance which he had understood he would have, in the interview above mentioned, with the persons to the negotiation several weeks before the time of the execution of the contract. It does not appear that any representations accompanied the contract or were made to the defendant in respect to its terms at the time of its execution otherwise than they were expressed by it.

It must be assumed that he knew what were the terms of the written contract when he executed it, and it does not appear that at any time afterwards until after this action was commenced he expressed any dissatisfaction with its provisions. While this contract was not in the respect before mentioned such as the defendant may have supposed he would be called upon to execute, or such as he had promised to make, it is difficult to see any support for a conclusion that there was any mutual mistake of the parties to it in respect to its terms, or fraud on the part of the vendor in procuring its execution by the defendant. His opportunity to examine it was ample, and he retained a duplicate of it. As a general rule, relief cannot be founded upon a mistake as to the legal effect of an instrument' or upon ignorance of law. But where one party is induced to, and does, execute an instrument upon the faith of the representation that it is drawn in accordance with the understanding of the parties, when in fact it lias not been so drawn, the former may have relief upon the ground of fraud if nothing further appears to deny it to him. Whatever the expectation of the defendant may have been in the present case, he was not, by any representation as to its terms other than as they appeared in the contract, induced to execute it. There was no legal obligation of the vendor to make a contract of sale upon any other • terms than those expressed in it, and of them the defendant by its inspection must be deemed to have been advised when he executed it. To support a charge of fraud for relief of a party from his contract under such circumstances, would be going beyond a well-established rule of law and further than it is prudent to go, to find the means of relieving a party from his contract.

If it appeared that fhe defendant was by any circumstances misled into the execution of the contract, supposing it was otherwise than it was in terms, relief may have been granted to him. Such was the case of Botsford v. McLean, 45 Barb. 478 ,where two of four notes on time were drawn without interest where it was evident'that it was intended they should all bear interest from their date, and the party, seeing that two of them contained the interest clause, failed to observe that it was omitted in the others. It was held he was entitled to reformation of those two notes.

In Albany Savings Institution v. Burdick 87 N. Y. 40, the grantor of Mrs. Burdick drew the deed, and, contrary to the understanding, inserted a clause to the effect that she assumed the payment of a mortgage he had given upon the premises. She, having trusted to him to prepare the deed, did not examine it to see that the assumption clause was in it, and did not know it was there. The court held that she was not, under the circumstances, necessarily chargeable with negligence to defeat her claim to reformation. Those cases do not seem to support the defense in the present ease. There it appeared that the payee in the note and the grantee in the deed did not know of the omission of interest on the two notes there in question, or of the existence of the assumption of mortgage clause in the deed at the time the notes and deeds were delivered and accepted.

In the case at bar it does not appear that the defendant did not read the contract before he signed it, or that he did not know its contents. He does state that upon signing the contract he relied upon the statements which had been made to him by Weaver and Aris and supposed the contract was the same. This must have had relation to his understanding of its legal effect, as he does not say that he failed to read it and ascertain its provisions as he had the opportunity to do deliberately before executing it.

In the view taken, the defendant is not entitled to relief on the ground of mutual mistake of the parties to the contract or of fraud on the part of the vendor.

The question of title is raised on the part of the defendant. The plaintiff gave evidence with a view to support the title in Waite at the time the contract was made. Amongst other evidence in that direction was a patent of the United States under the official seal, of date December 17, 1890, subscribed by the President of the United States, by M. M. Kean, secretary, and by the receiver of the general land office, granting certain lands including that in question to Peter M. Hacking. Objection was taken by the defendant to the introduction of this instrument in evidence. It was received in evidence and the question of its admisibility reserved. The objection is overruled and exceptions allowed to the defendant.

There was also offered in evidence what purported to be a certified copy of a power of attorney of Kingsbury to Goss, who as attorney in fact executed a deed of the premises to Chickering, and the question was reserved upon the objection taken to it on the ground that it was not properly authenticated. The objection is sustained. But other evidence was given of the execution of the power of attorney, and its contents were proven in support of the deed from Kingsbury to Chickering, and by the introduction of the patent of 17th December, 1890, before mentioned, the question arising upon reception in evidence of the certified copy of the receiver’s receipt of the purchase money from Hacking was practically disposed of as unimportant for consideration. It appeared by the conveyance put in evidence that William C. Waite had title to the premises at the time he made the contract with the defendant. He afterwards, in February, 1892, conveyed the. premises to George Herbert Smith, and before the commencement of this action Smith’s warrantyr deed with a certified copy of discharge of a mortgage was tendered to the defendant, and the payment of the the residue of the purchase money demanded, all of which were refused, but the defendant did not refuse to accept the deed for want of the personal warranty of Waite, his vendor in the contract, and no such objection seemed to have been at any time made by the defendant to the conveyance offered him.

It is urged that the taking of the assignment of the contract by the plaintiff was not within its corporate power, and, therefore, no. relief founded upon it was available to the plaintiff in the action. It may be assumed that the mere taking an assignment from the vendor of a contract for sale of land was not within the corporate powers of the defendant as it was personalty .only. If, however, the defendant should take also the title to the realty the assignment of the contract would be a legitimate incident to it, and as such within the corporate purpose of the plaintiff.

But is the question of ultra vires available to the defendant as a defense ? The contract of assignment by Waite to the plaintiff is an executed one. While it is true that the defendant’s contract is executory, it was not made by him with the plaintiff. It was valid in its'inception, and the plaintiff’s title to the contract was • perfected by the assignment, and in no sense is dependent upon performance of any executory contract.

The plaintiff is not seeking to enforce performance of any contract made by it, but a contract to which it had derived title from another. The question of ultra vires does not seem to concern the defendant, or to furnish any support for his defense. Whitney Arms Co. v. Barlow, 63 N. Y. 62; Holmes & G. M. Co. v. H. & Wessels M. Co., 127 id. 252, 260; 38 St. Rep. 155.

No other question seems to require consideration.

The plaintiff is entitled to judgment.


source: Caselaw Access Project

author: Bartlett, J.

license: Public Domain

text:
    Thomas Canary et al., Pl’ffs, v. Lillian Russell, Def't.

      (Supreme Court, Kings Special Term,

      Filed August, 1894.)

    1. Contract—Theatrical—Construction.
    The words, in the present contract, “the continuance of this contract,” was held not to restrain the “star” from singing during the summer months under any other management than the plaintiffs.
    2. Same—Representations.
    Representations made by plaintiffs, which did not constitute material inducements to enter into the contract, cannot be urged as a defense for a breach thereof on the part of the defendant.
    3. Injunction—Theatrical contract.
    The court has jurisdiction to grant an injunction for the enforcement of a covenant not to perform for rival managers.
    4. Same.
    Such order should be made only where the case, in favor of the complaint, upon the proofs presented to the court, is reasonably free from doubt.
    Motion to continue a preliminary injunction granted by Hon. William J. Graynor restraining Lillian Russell from singing, playing, performing, dancing, or in any way or manner exercising her talents upon any staged or with any organization, or for herself, or any person or persons or company, or in any operatic entertainment, under any management other than the plaintiffs’.

      Ira Leo Bamberger, for pl’ffs; Olin, Rives & Montgomery, for def’t.
   Bartlett, J.

—The preliminary injunction in this case should be modified so as not to restrain the defendant from singing and playing up to the 1st of October next, but should be continued in full force and effect from that date during the pendency of the action. ,

The reason why the injunction should be modified is, that the provision in the contract whereby the defendant undertakes not to perform for any other persons than the plaintiffs, without their written consent, seems to apply only to the two separate dramatic seasons which are specified in the agreement, and not to the summer interval between those seasons.

The contract provides, in the first place, for a season commencing on or about the 20th day of November, 1893, and continuing until on or about June 1, 1894. Then it provides for a privilege of renewal for a season beginning about October 1,. 1894, and terminating about June 1, 1895, for the same terms and conditions as the present contract. The negative covenant is in these words : 11 It is further understood and agreed that during the continuance of this agreement said party of the second part will not perform or give any exhibition of her talents at any place or for any persons other than tlie said parties of the first part, without their consent in writing first had and obtained."

In behalf of the plaintiffs it is urged that the clause “during the continuance of this agreement' is broad enough to prevent the defendant from giving any performance whatever during the summer months without their premission. It seems to me, however, that this is too restricted an interpretation of the language, and that the fair meaning of the parties was that during each ‘season in which Miss Russell was bound to serve Canary & Lederer she would not, without their consent, sing or play for any one else.

The more important question, however, which is presented by the motion to continue the preliminary injunction herein, is whether the plaintiffs are entitled to restrain the defendant, under this negative covenant, for the period of the second season contemplated by-the contract, that is to say, from the 1st of October to the 1st •of June next.

In considering that question we find :

First. A contract between the parties for one season, with the privilege of renewal for a second season on giving written notice.

Second. Performance by the defendant under that contract for the first season.

Third. The receipt by her of upwards of $27,000. .

Fourth. The giving of the prescribed notice entitling the plaintiffs to a second season ; and

Fifth. Declaration by the defendant to the effect that she will not sing for plaintiffs during a second season.

The defendant seeks to justify her course in such refusal by urging: . .

First. False representations on the part of Lederer, which induced her to enter into the contract, these representations being that Lederer was a partner with Canary, and that Lederer and Canary owned the lease of the theatre known as the Casino, in New York.

Second. Breach of the contract, in that Lederer did not always .accompany the troupe and devote his entire time and attention thereto; that he in some way assigned, transferred and let out his interest in the contract; and that the plaintiffs have been unable to secure a renewal of the lease of the Casino, and have not secured any other theatre or requested the defendant to select one.

The proofs before me do not sustain the position of the defendant on any of these points. I have great doubt whether the alleged representations were, in fact made by Lederer; but, if they were, it is difficult to see how they can have constituted material inducements to enter into the agreement or how their' falsity has injured the defendant. The last article of the contract ought to have been notice to her that there was no partnership. It could not be a matter of any consequence whether Lederer owned the lease of the casino in conjunction with Canary, so long as Canary was in a position to control it, as he appears to have been. The failure of Lederer to accompany the. troupe seems to have occurred on one occasion only, when he was ill. The notion that he had in some way transferred his interest in the contract appears to be based wholly on statements which he made in supplementary proceedings in the city court of Hew York. These were undoubtedly careless, and perhaps they might be more harshly criticised, without injustice; but, in view of the other evidence in the case, they afford no basis for the conclusion> as matter of fact, that Lederer had made any such transfer or assignment as is alleged. The inability of the plaintiffs to secure a renewal of the lease of the Casino, and the fact that they have not secured any other theatre and have not requested the defendant to choose any other are referred to in the answer as reasons why she should be allowed to refuse further fulfillment of the contract. Mr. Canary, however, swears that he now has a lease of the Casino from the receivers, which will last until Hovember 20, 1894. As to the neglect to procure any other theatre, under the 19th article of the contract, it will be time enough for the defendant to complain on that ground when she evinces a willingness to fulfill the agreement on her part.

The jurisdiction of the court, in the case of an actor or actress, to grant an injunction for the enforcement of an agreement not to perform for rival managers, is now too well established to require the citation of authorities to support it. It is, nevertheless, true, that a restaining order of this sort, before there has been a full inquiry into the facts by means of a trial, should be made only where the case, in favor of the complainant, upon the proofs presented to the court, is reasonably free from doubt. It seems to me that this is just such a case. The impression made upon my mind by a careful reading of all these affidavits is that defendant has been seeking some plausible pretext to avoid the fulfillment of a contract which has been substantially performed in good faith on the part of the plaintiffs.

The injunction will be modified to the extent already indicated, and as thus modified will be continued during the pendency of the action; costs to abide event.


author: Ward, J.

text:
    Edward W. Hatch, Pl’ff, v. George E. Matthews, Def’t.

      (Supreme Court, Erie Special Term,

      Filed June, 1894.)

    1. Pleading—Separately stated and numbered.
    The provisions of §§ 483, 507 of the Code apply only to cases where the court can see, from the pleading itself, that there is more than one cause of action or defense alleged, so that a separation should be made.
    2. Same—Answer—More definite and certain.
    Where the defendants, in an action for libel, plead their reasons for their conduct in mitigation of damages, they should be stated like any other fact pleaded in mitigation.'
    3. Same.
    But they should not be required to give the evidence on which they base the alleged libelous statement.
    Motion by the plaintiff to require the defendants to serve an amended answer wherein they shall separately state and number a defense of justification and one in mitigation of damages alleged in one answer to a complaint charging a libelous publication upon the plaintiff by the defendants, and also that the answer be made more definite and certain in certain particulars.

      Simon Fleischman, for pl’ff and the motion; Charles B. Wheeler, for def’ts, opposed.
   Ward, J.

—The substance of the libel charged in the complaint is that in an action that had been tried in the superior court of Buffalo before the plaintiff, as judge of that court, and a jury, wherein one Smith was plaintiff, and the defendants herein were defendants, which was also an action of libel, the plaintiff had been actuated by malice and by improper motives in his judicial action in that case. That is to say, the charge might bear that construction.

The defendants, in their answer in this action, go considerably into details of certain transactions between the plaintiff and his brother, Charles S. Hatch, and in regard to organizing another Republican newspaper in the city of Buffalo, and somewhat into political affairs in" that city, and charges the plaintiff with being prejudiced against them, but expressly disclaims any intention to charge the plaintiff “ with being guilty of corrupt conduct as a judge of said superior court of Buffalo against said defendants upon the trial and proceedings connected therewith of said action, in which Juliette 0. Smith was plaintiff and these defendants were defendants ” (the action- above referred to); and they also allege that they did not intend to charge any intentional or wilful misconduct on the part of said plaintiff on the trial of said action or the proceedings connected therewith.

Assuming that the charge contained in the complaint is as stated, that the plaintiff was actuated by malice and improper motives upon the trial of an action in the superior court, the answer, as served herein, does not contain a justification thereof, but all the matters alleged, taking the whole answer together (as we must), amount, if'they amount to anything, to a partial defense, or in mitigation of damages, notwithstanding the statement in the answer itself that the matters therein alleged were both by way of justification and mitigation. Indeed, the learned counsel for the defendants conceded that upon the hearing of this motion and moved that the word “justification” be stricken from the answer. Assuming then that there is no matter in justification alleged in this answer, but only matters of mitigation, then that portion of the motion which asks that the defense be separately stated and numbered must fail, because there is but one defense alleged, viz., in mitigation or a partial defense.

The provisions of the Code (§§ 483, 507) requiring that when two or more causes of action are stated in a complaint, or where more than one defense is alleged in the answer, they must be separately stated and numbered, apply only to cases where the court can see from the pleading itself that there is more than one cause of action or defense alleged, so that a separation should be made. Trenndlich v. Hall, 7 N. Y. Civ. Proc. Rep. 62.

The plaintiff’s motion further asks that the defendants’ answer be made more definite and certain in regard to the following allegation: “These defendants allege, however, upon their information and belief, that the said plaintiff, at the time of the trial of the said action, was, and still is, personally prejudiced and biased against these defendants and the said newspaper published by them, and that that prejudice and bias influenced the mind and judgment of said plaintiff in the discharge of his judicial duties, and that it did bias and prejudice said plaintiff in the trial of said action of Smith v. Matthews and the proceedings connected therewith.”

There is nothing indefinite or uncertain in this clause of the answer, the allegation being simply that the plaintiff was prejudiced and biased against the defendants, and that bias influenced his mind in the action tried before him in the superior court. The moving papers ask that the answer specify by what manifestation of speech or act such prejudice was shown by the plaintiff in the discharge of his judicial function in the action mentioned. That would require the defendants to give the evidence upon which they base their charge of prejudice or bias, which cannot be done.

The moving papers further ask that the following allegation in the answer be made more definite and certain: ‘“And said defendants further allege, upon their information and belief, that the said defendant Matthews and the said defendant Austin had good and sufficient reasons for believing that the statement so, as aforesaid, made by the said Charles S. Hatch was the result of an outcome of statements made by this plaintiff to the said Charles S. Hatch, and were the result of unfriendly and hostile feelings on the part of said plaintiff and the said Charles S. Hatch towards these defendants,” by stating specifically the good and sufficient reasons which the defendants claim to have had for believing, etc., as above stated. This part of the motion should be granted ; as the defendants choose to say that they have sufficient reasons for their conduct, and plead those reasons in mitigation of damages, they become facts upon which the defendants rely in making out their defense in mitigation, and they should, therefore, be stated like any other fact plead in mitigation.

The word “justification” will be stricken from the second answer herein, and an order entered in accordance with the views expressed herein, and, as neither party has fully prevailed upon this motion, motion costs are not allowed to either party.

Ordered accordingly.


author: Gaynor, J.

text:
    The People ex rel. William Shand, Pl’ff, v. James G. Tighe, as Police Justice, Def’t.

      (Supreme Court, Kings Special Term,

      Filed August 31, 1894.)

    1. Municipal corporation—Ordinances.
    Under an ordinance, authorizing the institution of certain proceedings before a police justice, if a dog shall “attack a person,” the justice is without jurisdiction, unless complaint is made to him that the dog has made such attack.

      2. Samb—Notice.
    The justice cannot direct the owner of the dog to kill him without giving him notice of hearing and opportunity to be heard thereunder.
    3. Same.
    A statute, authorizing a common council to pass an ordinance to “regulate and license” dogs, does not confer power to pass an ordinance to kill them.
    4. Dogs—Property.
    A dog is property, in the fullest sense, in this state.

      H. F. Koepke, for relator; D. F. Ayres, for resp’t.
   Gaynor, J.

—The charter of Brooklyn empowers the common council to enact ordinances to regulate and license a variety of occupations, places and things, including “common shows and dogs." Claiming to act in pursuance of and within this power to legislate thus conferred upon it by the state legislature, the common council many years ago passed an ordinance that if any dog shall “attack a person” at any place except on the premises of his owner, upon a complaint being made to the mayor, or a police justice, he shall inquire into the complaint, “and if satisfied of its truth, and that such dog is dangerous, he shall order the owner or possessor of such dog to kill him immediatelyand if the owner refuses to obey the order within forty-eight hours he shall forfeit $10, and also $5 more every forty-eight hours thereafter until the dog is killed. A police justice having ordered the relator to kill his dog under this ordinance, and the relator having refused to obey, the police justice has now brought the relator before him on a warrant, and is proceeding to enforce the prescribed penalty. This court is asked to issue a writ of prohibition in the name of the people commanding the police justice to desist. By the return of the proceedings to this court it appears that one Thomas Croke made a written complaint to the justice that the dog bit him on a public street. It will be observed that the ordinance only professed to confer jurisdiction on a justice to act in a case where a dog “attacks a person.” The complaint alleges no attack by the dog, and when I come to read the evidence given bjr Croke upon the examination in the proceedings against the owner, I find that he swears that the dog was on the street with the owner’s boy, and that, to use his exact words, “ I got hold of the boy, and the dog bit me so that instead of the dog making an attack, Croke seems to have attacked the boy and the dog defended him. No complaint being made to the justice that the dog had made an attack, he was without jurisdiction to do anything in the matter, conceding the ordinance to be valid. But, furthermore, the justice proceeded under the complaint, gave judgment against the dog and ordered his owner to kill him, without having given any notice of hearing and opportunity to be heard thereunder to the owner. Property may not be taken, affected or destroyed except by due process of law, which requires notice of hearing to the owner and opportunity to be heard. State Const, art. 1, § 6 ; Stuart v. Palmer, 74 N. Y. 183. Under the common law of England a dog was not property. It was not larceny to steal a dog, though it was larceny to steal a dead dog’s hide. But the world moves, and these crudities no longer exist, and in this state a dog is property. Mullaly v. People, 86 N. Y. 365. The dog from the beginning has been the friend and solace of man; and the law has only recognized the testimony of human nature, history and poetry in withdrawing him from outlawry. 2 Mot. Dutch Bepub. 398; Odyssey, b. 17; Moore’s Byron, vol. 7, 292. It may be well to remember in excuse of the courts, however, that when they declared that a dog was not property, it was in order to decide that it was not larceny to steal him, for the prescribed punishment at that time for larceny of property of the value of twelve pence or more was death, and" they thought it not fit that a man should die for a dog. Coke’s Inst. 3d, 109, etc. And yet it was larceny to steal a tame hawk, and, as I have said, a dog’s hide. But, trying to forget these oddities, suffice it that a dog is property in the fullest sense in this state; and, therefore, the order of the justice to kill this dog was absolutely void because he gave judgment without a hearing, andt as has been seen, that is no judgment at all, and can affect nothing and nobody. It follows, of course, that the justice has no jurisdiction to punish the owner for not having obeyed this void order of judgment. As to the ordinance itself, it is one of those absurdities which we often encounter. It is void. It professes to authorize judgment without the constitutional requirement of a judicial hearing upon due notice. 74 N. Y. supra. And besides, I do not find any anthority going so far as to suggest that a statute authorizing a common council to pass an ordinance to “ regulate and license ’’ dogs, or swine, or cows confers power to pass an ordinance to kill them. The common law is that a ferocious or dangerous dog running at large in a public street is a public nuisance, and may be killed by anyone. The intervention of a police justice is wholly unnecessary. This ordinance is a fair sample of too much law and government, like many others enacted in Brooklyn, one of which is that no householder shall allow his chimney to take fire. I think it proper to say that I do not see that the police justice is open to blame. He only did what has been done by his predecessors for a long time.

Let the writ issue.


author: Per Curiam.—

text:
    Otto Cook, App’lt, v. Mayor, Aldermen and Commonalty of the City of New York, Resp’t.

      (New York Superior Court, General Term,

      Filed July, 1894.)

    Municipal corporation—Employe—Compensation. •
    Persons in subordinate employments, after being “ relieved from duty,” cannot recover from the municipality pay as upon full performance of service.
    Appeal from a judgment dismissing the complaint upon the merits.

      Action to recover the sum of $3,350, alleged to be due plaintiff for salary as guard in the penitentiary at Blackwell’s island from July 1, 1886, to February 1, 1892.
    The following is the opinion of the judge below :
    McAdam, J.—The plaintiff was appointed one of the guards at Blackwell’s island on January 8, 1885, at $550 a year, which rate was subsequently increased to $600. The plaintiff performed services until June 29, 1886, when he was “relieved from duty.” He received pay till June 30, 1886, which included all services actually rendered. The action is to recover the stipulated compensation from that time, on the legal fiction that, although he performed no services and had no duties, he was never actually discharge from the place; hence, his right to pay continued to run ad infinitum, and this claim is based upon the cases of Gregory v. Mayor, etc., 113 H. Y. 416; 22 St. Bep. 703, and Emmitt v. Same, 128 H. Y. 117; 38 St. Bep. 907. Those decisions have certainly invited much litigation, but the principles decided thereby were never intended to embrace the horde of ¿claims which have been made under them. The plaintiff alleges in his complaint and proved at the trial that he was “relieved from duty,” which impliedly assumes that he was legally so relieved, and the term “relieved from duty,” as applied to the character of his employment, is tantamount to “discharge,” for it meant that and nothing less. The right to pay in such an employment is inseparable from duty, and when the plaintiff was relieved from the exercise of the earning power he was effectually discharged from the service altogether. Web. Die. He acted on this assumption when he sought a civil service examination for a position on the police force, for in his written application he described his previous. employment as “guard,” etc., and gave as the cause of “leaving” relieved from duty. It was never intended by any adjudicated case to hold that persons in subordinate employments like that of plaintiff’s should, after being “relieved from duty,” recover from the municipality pay as upon full performance of service, nor is there any legal warrant for any such interpretation of the law. The rule (to which there are not many exceptions) is “no work, no pay,” founded on the just principle that the one is a just equivalent for the other. The conclusion reached is in accord with the rulings in Gore v. Mayor, etc., H. Y. L. J., Feb. 9, 1893, and Kelly v. Same, 54 St. Bep. 99, in both of which cases the right of recovery was denied, though the claims were entitled to as much, if not more, consideration than the one in suit. It follows that there must be judgment for the defendant.

      Thos. G. Hillhouse (O. P. Buel and Geo. B. Morris, of counsel), for app’lt; William H. Clark (Edward H. Hawke, Jr., and Charles A. O'Neil, of counsel), for resp’t.
   Per Curiam.—

The judgment’ should be affirmed, with costs, upon the opinion filed by the learned judge below.

Present: Freedman and G-ildersleeve, JJ.

Judgment affirmed, with costs.


author: McAdam, J.

text:
    Croft C. Carroll, Pl’ff, v. Clayton E. Sweet, Def’t.

      (New York Superior Court, Trial Term,

      Filed July, 1894.)

    Bills and notes—Protest.
    Where it is incumbent on the holder of a check to present it for payment, he loses, if he fails to do so, not only his remedy on the check, but also the original consideration or debt.
    Action was brought to recover balance of bill. The defense was payment by a check of like amount, drawn by a third party to defendant’s order, and by him indorsed to plaintiff in satisfaction of this debt.
    The check was drawn on the First National Bank of Asbury Park, Asbury Park, N. J., at which place Woodruff, the drawer, kept what was known as the Coleman House. At the time the check was drawn and indorsed over to the plaintiff the parties were guests at this hotel; so that presentation of the check could have been made without any delay whatever. It was not protested, however, until August 31, 1887, on which day Woodruff closed his hotel and became notoriously insolvent. Hp to this time the receipts from Woodruff’s business, according to the evidence, averaged about $600 a day, and he testifies that, independently of the small deposit he had in bank, he had funds out of which he might have paid the chéck if he had been urged to do so.

      Carter, Hughes & Kellogg, for pl’ff; J. W. Bartram, for de’ft
   McAdam, J.

If the action had been on the check against Woodruff, the drawer, he would have had no defense, the bank on which it was drawn not having failed, and he having suffered no injury by the delay. But the action is against the indorser, and as to him a different rule prevails, for if a check given as this one was is not timely presented by the (Creditor for payment, the indorser is discharged. Daniel Neg. Inst. § 452; Smith v. Miller, 43 N. Y. 171.

The court of appeals, when the present case was before it (see 128 N. Y. 22; 37 St. Rep. 868), said: “ The plaintiff, on accepting the check, assumed, as between himself and the defendant, an obligation to present the same to the bank for payment within the time prescribed by the law merchant, that is to say, not later than the next day after its date, and if refused to protest the same and give notice of its nonpayment. Smith v. Janes, 20 Wend. 192. It was not presented until the 31st of August, nine days after it was received by the plaintiff. The defendant was, by such delay, discharged from liability as indorser of the check, irrespective of any question of loss or injury. Presentment in due time, as fixed by the law merchant, was a condition upon performance of which the liability of the defendant as indorser depended, and this delay was not excused, although the drawer of the check had no funds or was insolvent, or because presentment would have been unavailing.” Mohawk Bank v. Broderick, 10 Wend, 304; Gough v. Staats, 13 id. 547 ; see, also, Morse Banking (3d ed.), § 234a.

Though the action here is not upon the indorsement of the defendant, but upon the original indebtedness, the result is the same, for whenever it is incumbent on the holder to present the bill or check for acceptance or payment, if he fails to do so at the proper time, he loses not only his remedy on the bill or check, but also the consideration or debt in respect of which it was given or transferred. Daniel Neg. Inst. §§ 452, 1276; Smith v. Miller, 43 N. Y. 171; Adams v. Darby, 28 Mo. 162; Camidge v. Allenby, 6 B. & C. 373 ; Darrath v. Savage, 1 Show. 155.

The rule deducidle from the authorities is that taking from the debtor a note or check of a third person for a pre-existing debt is not payment, unless expressly agreed to be taken in payment, or unless such note or check be paid. In other words, the note is taken conditionally^ that if not paid it is not to prejudice the remedies on the original cause of action. The creditor receiving the note or check, however, may so act with it as to make it his own unconditionally—a course which necessarily implies the satisfaction of the debt. This result follows where the creditor fails to perform a duty in regard to protest; for in case a" plaintiff has lost by his own loches his legal recourse against the defendant upon the note or check, it is in vain that he' comes into court with the expectation "of being allowed to recover on the original consideration." As well might he hope by such means to revive a cause of action that had been barred by the statute of limitation. Gracie v. Sandford, 9 Ark. 238.

The object of requiring prompt notice to indorsers is to afford them every opportunity to secure themselves, and if by the act or omission of the creditor a loss occurs, it should fall upon him who is the cause of the loss rather than" upon the innocent debtor. If the check had been promptly presented and timely notice of protest given to defendant as indorser, he might have collected the debt, for it was not ufitil August 31, 1887, the dáy the check was protested, that Woodruff, the drawer, stopped payment and became notoriously insolvent. The defendant was certainly entitled to make the effort to collect from Woodruff, but was by the loches of the plaintiff deprived of the privilege.

If the onus of proving that no damage resulted to defendant from the failure to protest the check in time was upon the plaintiff,' he has failed to establish that no injury resulted from such neglect. True, there is nothing in the case that would warrant a finding that the defendant would have collected the debt if the.check had been promptly protested; yet he might o have done so, and the evidence justifies the belief that, if pressed, Woodruff would have paid the check. Morse Banking (3d ed.), § 234a. Iii view of this fact it cannot be said' that the plaintiff lias affirmatively established absence of all injury by the defendant, and in this respect he has failed to make out his cause of action if this circumstance is to be regarded as a material part of it. Dor these reasons there' must be judgment for the defendant, with costs.


author: Fitzgerald, S.

text:
    In the Matter of the Will of Louis Lang, Deceased.

      (Surrogate's Court,

      Filed August, 1894.)

    1. Will—Capacity.
    A testator is capable of making a will, if lie has sufficient thought, reflection and judgment to know of the property he has, and to decide and declare what shall he done with it.
    2. Same.
    A lack of testamentary capacity is not to be assumed from the fact that ' one is far advanced in years.
    8. Same—Insanity.
    Mistaken belief as to relative’s character is not insanity and will not avoid a will.
    4 Same—Alteration.
    An alteration, not attested or observed by either witness, must be deemed to have been made after execution.
    5. Same.
    Such alteration does not revoke will.
    6. Same—Legatee—Description.
    An imperfect or inaccurate description of a person, natural or corporate, will not defeat a gift or grant.
    7. Same—What law governs.
    The law of the legatee’s domicil controls as to the validity of the bequest.

      Chambers & Boughton, for proponents; W. C. Morris (Douglas E. Levien of counsel), for contestants.
   Fitzgerald, S.

—The subscribing witnesses, Frederick H. Steinbrenner and Charles A. Appleton, testify to the facts essential to a due execution of a will. The paper is in the handwriting of the decedent, and was brought by him to the office of D. Appleton & Company, with which house the witnesses were connected, was presented to them with a statement that it was his will and the request that they sign it. He did not in their presence sign the paper, nor did he in expressed terms acknowledge his signature. But its presentation to them with his signature in plain sight, as testified to by them, was a substantial acknowledgement. Matter of Phillips, 98 N. Y. 267.

Objections were filed in behalf of decedent’s brother, Johann Hepomuck Lang, alleging that the execution was not a voluntary act of the decedent, and that he was not of sound mind and memory. Ho evidence of undue influence was produced. The only issue to be determined by me is the question of mental capacity, except that which arises on the validity of the instrument which is called in question on other grounds, and which I will hereafter consider.

Louis Lang was by birth a German, and was unmarried. He was an artist, and had resided for nearly fifty years in Hew York. By thrift he had accumulated a competence more than sufficient to supply his "wants. His surplus moneys he deposited with Messrs. Appleton & Co., with some of the members of which house he was on terms of intimacy. Against the account he ■drew checks. Under the advice of Mr. William W. Appleton ho made investments, and the securities were left with the firm for safe keeping. He was a member of the Artists’ Fund Society and of the Century Club. In later years, by reason of increasing infirmities, he visited the club with less frequency. He became untidy in personal appearance, and his memory was somewhat impaired, a condition not uncommon in aged people, and at the age of eighty-one he died.

A competent testator, free from undue influence may make whatever disposition of his property by will that he chooses, though unjust and unreasonable. He may divert his estate from those who would be regarded as having a natural claim upon his testamentary consideration, and give it to strangers. If capacity and formal execution and volition appear, the will must stand. Seguine v. Seguine, 4 Abb. Dec., 191. As concisely stated by Rollins, surrogate, the question of capacity is whether a decedent is capable of sufficient thought, reflection and judgment to know of the property he has and to decide and declare what shall be done with it. Cornwall v. Riker, 2 Dem., 354. And an unjust belief by a testatrix that her brother, the contestant of her will, had obtained more than a fair share of the property left by their father, to her detriment, and which caused her to have an intense dislike for the brother, was a mistake in judgment, and was no ground for rejecting her will. Matter of Bull, 6 Dem. 123. Even a monomaniac may make a valid will if the delusion has no relation to the subject or object of the will or the persons who would be likely, ordinarily, to be the recipients of his bounty, where the provisions of the will are entirely unconnected with or uninfluenced by the particular delusion. Lathrop v. Board of Foreign Missions, 67 Barb. 590. Nor is a lack of testamentary capacity to be assumed from the fact that one is far advanced in years. Horn v. Pullman, 72 N. Y. 269. In the light of these principles, I will consider the case on the evidence produced.

In 1889 or 1890—the date I will consider hereafter—Louis Lang himself wrote the paper now under consideration as his will. He also wrote another in the German language, purporting to be a will, and which in the papey itself he claimed expressed the meaning of the one in English.

He was conscious that he was near the end of life. He stated to Mr. Roelker, whom he named as one of the executors, that his bonds and valuables were in a tin box in the possession of Mr. Appleton. In the box were also found the will and the German copy. He explained to Boelker some of the provisions of the instrument, and gave him instructions stating that his death might occur at any time. He told him where, in his apartment, other important papers were, that he might readily find them. He further stated to Mr. Boelker that Mr. Cunningham would attend to the details of his funeral. On a sheet of note paper with the caption “Last memoranda of Louis Lang to Patrick Cunningham,” whom he addresses as his friend, he gives instructions in respect to the disposition of his remains, to provide an inexpensive headstone for his grave and he designates Mr. William W. Appleton as his first and Mr. John L. Fitch his second executor. On a ■similar sheet, dated September 12th, 1891, he makes the same request, and asks Cunningham to see Mr. Fitch, his “second executor,” who will send documents referring to his will to his native town, and will sell his pictures and other things in his room at auction for the benefit of the poor artists’ widows. On October 17, 1892, he wrote to Mr. George W. Yewell, as “ secretary of the Art Fund,” stating that he had made his will, and in it made a disposition of everything in his apartments to be collected and prepared to be sold after his death for the benefit of the Artists’ Widows of the Art Fund established in the city of New York;” On December 5, 1892, he wrote to Mr. Alfred Roelker a letter, in which he referred to his important papers and the necessity for Mr. Roelker to see where they were. Besides these documentary proofs, is the testimony of Mr. George H. Story and Mr. Yewell,-who called on Lang in 1892, long after his will was executed, and of Messrs. Augustine Smith and Thomas W. Wood, who had had a long acquaintance with him, which continued to near the period of his death. From their testimony, and that of Mr. Roelker, there can be no doubt of the mental competency of the decedent.

Against this evidence are facts which appear upon the face of the will and other papers produced showing a tendency to decay of memory and of mental power. In the will, as in the two letters written to Cunningham, he refers to Mr. Fitch as one of his “ executors,” to whom he had intrusted the collection and disposal of his pictures for the benevolent fund of the Artists’ Fund Society, though further on in the same instrument he states that “ William W. Appleton and George H. Roelker had volunteered to be his executors.” But “ George H.” is stricken out; with the pen, and above in red ink is written the word “ Alfred,” but leaving on the next line “ George H.” as part of Mr. Roelker’s name, with a statement that he is to conduct the correspondence in German. On the fifth page he again writes the name “ George H. Roelker.” The residence of Mr. Roelker he states to be “ 202,45 West street,” instead of 202 West Forty-fifth street, where it is and has been for many years. No such person as George H. Roelker is known to Alfred Roelker. Besides, no one of that name resided in his house. The name of the society to be benefited by the proceeds of the sale of his effects is differently expressed, as “ the Artists’ Fund Society,” and “ the Benevolent Artists’ Widows Fund” and “ the Benevolent Fund.” Interjected in the will, at the foot of the first page, in the paragraph giving instructions for the disposition of his effects, is written “ Jewels 1 have none,” and after the signatures of the subscribing witnesses at the end of the attestation clause, he has written the words “I am not a Chatolie Louis Lang,” doubtless a misspelling of the word Catholic, though it is in proof that he was reared in the Catholic faith. The date appears in the clause at the foot of the instrument as the 8th day of May, 1889, and immediately below, and above the signature, in Lang’s handwriting, is written “May 8th, 1890.” There is also an indorsement, written by himself, which reads, “ Louis Lang’s last will and testament. Original in English, May 8th, 1890.” There is in the paper a profusion of exclamation points, which is also a feature in his letter. A portion of the will is written in the language of the law, as if drafted by. an attorney. Other parts are colloquial in style, the words being such as a layman would be apt to use in the expression of his ideas. A direction to the executors to collect from the treasurer of the Artists’ Fund his accrued interest of $4,000, and add to it his assets, is crossed out in red ink, and opposite is written, “ The amount has been paid pro rata to the members.”

These anomalies, on careful examination, are accounted for. Some must have been the result of a failing memory,, incident to old age. The fact of two different years—1889 and 1890,—being assigned to May 8th, as the date of the will, is explained by a paper introduced in evidence, purporting to be a codicil, signed by the decedent and attested by the same witnesses, Steinbrenner and Appleton. This codicil is of a formal character, not in the hand writing of Lang, but evidently prepared by an attorney, probably Mr. Elial F. Hall, for many years a well known lawyer practicing in this city, whose name appears in the indorsement. In the first clause it is stated to be a codicil to a will executed March 4th, 1889, several weeks before the date of the will, conceding it to have been executed in 1889. The true dates of the two papers are important to be considered, as bearing upon the question of the decedent's mental competency. The memories of the subscribing witnesses do' not agree as to the order in which they were signed. Mr. Steinbrenner’s recollection is that the will was the first executed. Mr. Appleton is confident that it was the codicil. They do both agree that there was a year between the two events. From the intrinsic evidence afforded by the papers themselves, I am satisfied .that Mr. Appleton’s memory is correct, and that the date, May 8th, 1889, which occurs twice in the codicil—• once in the witness clause and again written by the decedent himself above his signature—was when he copied the language of the codicil mechanically into the witness clause of the will, below which and abqve his signature he wrote the correct date, May 8th, 1890. As the codicil repeats and confirms the first seven sections of the will of March 4th, 1889 (which paper has not been found), and cancels the residue and substitutes provisions which, with marginal notes, were carried into the contested paper, no other conclusions can be reached but that the codicil was a codicil to a will of March 4th, 1889, and not to the paper under consideration. The language on the second page of the contested paper, in which he speaks of Mr. Fitch as his second executor, was doubtless without consideration copied from the will of March 4th, 1889, unmindful of the fact that he had determined to substitute Mr. Boelker, wbqm he named on the third page, though he gave his name inaccurately.

The claim that there was such a general impairment of mind as to suggest incompetency to make a will must be dismissed. It was only his memory that was at fault, but his mistakes did not obscure his testamentary intentions. They are apparent on a casual reading of the paper, and must determine the disposition of the property unless the will was the result of an insane delusion. The existence of such a delusion is claimed, but not in respect to his brother, the contestant, for to him he bequeathed 2,000 marks to enable him to pay his debts; nor to his brother’s daughter, for he provides for her in the trust created by the paper, a life interest in 50,000 marks ; nor in respect to his brother’s son Henry, whom he gives 2,000, if not 5,000 marks, to be paid in annual installments of 250 marks each; nor yet to the children of another niece; the first wife of Salzman, to each of whom he bequeathed 1,000 marks. The delusion is claimed to be in respect to the contestant’s sou Hubert, who receives nothing in the will, and would receive nothing had Louis Lang died intestate. There is no declaration in the will or elsewhere that the passing of Hubert Lang without testamentary recognition was due, as is claimed, to a belief by the decedent that be had been robbed by Hubert, or that Hubert was a robber. There does not appear to have been any good reason for suspicion on the part óf the decedent in respect to Hubert. At most it seems to have been a mistaken belief on his part in respect to Hubert’s character, but such belief is not insanity, and cannot avoid a will deliberately prepared and properly executed. See Clapp v. Fullerton, 34 N. Y., p. 197.

Certain erasures and alterations which appear on the face of the paper are claimed by the contestant to have worked its revocation. The striking out of the “ George H.” as the Christian name of Mr. Roelker and. the writing in of “ Alfred ” I have referred to. That change does not obscure the intention of the testator. It makes it certain. But he has changed the amount of a bequest to his nephew Heinrich Lang for 5,000 marks to 2,000 marks in the eleventh clause of the fifth page. This is manifest from the fact that the 5,000 marks expressed in figures is left, followed by the words two thousand marks,” the two being manifestly written over an erasure, and further down in the same paragraph the word “two” is again written over an erasure followed by the words “ thousand marks.” These alterations, from their character, justify the presumption that they were made after the execution of the will. Such alterations will not invalidate the instrument, if the original intention of' the testator can be ascertained. In this case the 5,000 in figures make it certain that it was “ five ” that was erased, and “ two” written over the erasure. This question was fully examined by Rollins, Surrogate, in Wetmore v. Cary, 5 Redfield, 544, which case is in some respects analogous to the one under consideration. In the will there, as it was originally written, was a bequest to each of two granddaughters of “five thousand dollars." On inspection it appeared that the word “ five ” had been altered to “ two.” There being no attestation of the alteration and neither witness having observed it at the time of execution, the surrogate held, upon a full examination of the ■authorities, that the alterations must be deemed to have been made after execution and consequently inoperative. Under the rule thus laid down, the bequest to Heinrich Lang of $5,000 marks as originally written must stand.

The only question remaining is whether the will is invalid upon other grounds set forth in the objections.

Little or no stress is laid by the counsel for the contestants on the question as to the identity of the legatee provided for in the second and third clauses of the will. The legacy is claimed by the Artists' Fund Society of the city of New York. The rule of law in this respect is concisely stated in St. Luke's Home v. Association for Indigent Females, 52 N. Y. 191: 1‘ A bequest would not be held void for uncertainty as to the legatee, except when it is found impossible, either from the words used alone or in connection with such extrinsic evidence as would be competent to determine with reasonable certainty the person or corporation intended. It is well settled that an imperfect or inaccurate description of a person, natural or corporate, will not defeat a gift or grant.” The evidence adduced in support of the claim of the Artists’ Fund Society seems to establish beyond any reasonable doubt that the claimant was intended by the testator to receive the legacy.

The sole question remaining for the court to determine is as to the capacity of the council of Charitable Foundations in the city of Walldsee, kingdom of Wurtemburg, Germany, to take the residuary legacy. The law of the legatee’s domicile controls as to the validity of the bequest, and the courts of this state will recognize a bequest which, if made to a legatee here, would be illegal, as valid when given to a legatee entitled to take under the laws of his domicile. Estate of Beck, Surr. Decs., 92, page 16; Chamberlain v. Chamberlain, 43 N. Y. 432; Matter of Huss, 126 N. Y. 537; 37 St. Rep. 789 ; Hope v. Brewer, 136 N. Y. 126-139; 48 St. Rep. 834.

The evidence adduced on the trial as to the laws of the domicile of the intended legatee and of its ability thereunder to take by bequest, satisfies me that the legacy in question is valid.

Submit decree.


author: Davie, S.

text:
    In the Matter of the Estate of Paulina McClouth, Deceased.

      (Surrogate's Court, Cattaraugus County,

      Filed July, 1894.)

    1. StTBBOGATE—PBOCEEDINGS POB PAYMENT OP LEGACY—AnSWEB.
    An answer, which denies the validity of the claim without alleging the facts, or alleges the facts without denying the validity or legality of the claim, is insufficient.

      2. Same.
    When the answer meets both of these requirements and shows that the determination of the petitioner's rights will involve a construction of the provisions of the will, the petition should be dismissed.
    3. Same—Oonstbuotion op will.
    Surrogate has no jurisdiction to construe a will in any other than proceedings for judicial settlement of accounts.
    Proceeding, under § 2717 of the Code of Oivil Procedure, to compel the payment of legacy.

      W. K. Harrison, for petitioner; A. & G. E. Spring, for executor.
   Davie, S.

—On the 22d day of June, 1894, Lucinda Rogers, claiming to be a legatee under the will of deceased, filed her petition pursuant to the provisions of § 2717 of the Code, containing the usual averments, and on the return of the citation issued thereon the executor appeared and filed an answer, duly verified, denying absolutely that the petitioner was a legatee under such will, and alleging that by the terms of the will all the property of which the testatrix died possessed was devised and bequeathed to Charles D. McClouth, and that he was the absolute owner thereof, and that “the payment of the sum of five hundred dollars ” (the amount claimed by the petitioner), “ was left wholly to the discretion of the said McClouth, as such executor, and said executor denies that the discretion so vested in him can be modified, limited, suspended or interfered with in any manner; ” then followed an allegation setting forth somewhat in detail the terms and provisions of the will and the facts tending to show that the petitioner had no absolute rights as a legatee, and thereupon the executor moved for a decree dismissing the petition pursuant to the requirements of § 2718 of the Code. This section provides that such a decree must be made “ where the executor * * * files a written answer, duly verified, setting forth facts which show that it is doubtful whether the petitioner’s claim is valid and legal, and denying its validity or legality absolutely or on information and belief.”

The character of answer sufficient in form to deprive the surrogate of jurisdiction is quite clearly defined; denying the validity of the claim without alleging the facts is insufficient, In re Macaulay, 94 N. Y. 574; so is an answer which alleges the facts without denying the validity or legality of the claim. Lambert v. Craft, 98 N. Y. 343

The answer filed in this proceeding meets both of these requirements ; it denies absolutely that the petitioner is a legatee, and sets forth the facts upon which such allegation is predicated; and it appears from the facts alleged that the determination of the petitioner’s rights will involve a construction of the provisions of the will. The jurisdiction of surrogates’ courts is limited, and they are entitled to exercise such powers only as are conferred by statute or such as are necessarily incidental to the exercise of those powers expressly conferred, Bevau v. Cooper, 72 N. Y. 329; Riggs v. Cragg, 89 id. 479; and while they have authority to construe wills upon proceedings for judicial settlement as a necessary incident thereto, no jurisdiction exists for entertaining an independent proceeding for construction. In Fiester v. Shepard, 92 N. Y. 251, which was a proceeding instituted by one claiming to be a legatee for payment of legacy, the answer denied that, by the terms of the will, the petitioner became a legatee, and the court says: When the right of the claimant, which arises upon a debt against the estate or upon a legacy, is denied by the representative of the estate, the surrogate is prohibited by statute from hearing and deciding the issue thus raised, and the party is remitted to another proceeding or tribunal to establish and enforce his rights. To the same effect are Charlick's Estate, 11 Abb. N. C. 56; Hurlburt v. Durant, 88 N. Y. 121; Mumford v. Coddington, 1 Dem. 27; Smith v. Murray, id. 84.

A decree will be accordingly made dismissing the petition in this proceeding, without prejudice to an action or accounting on behalf of petitioner.

Decreed accordingly.


author: White, J.

text:
    The Backus Manufacturing Company, App’lt, v. Charles L. Feldman, Resp’t.

      (Buffalo Superior Court, General Term,

      Filed July, 1894.)

    1. Contract—Place of return.
    Where a heater is sold to fulfill certain conditions and prove satisfactory, and it did neither, the purchaser has the right to return it at the place where it was delivered to him.
    2. Same—Consideration.
    In such case, an agreement by him to pay for its removal, is without consideration.
    S. Same—Notice.
    Notice to vendor’s employes who came to demand payment is sufficient, if the fact of such notice came to the managing agent.
    Appeal by the plaintiff from a judgment of the municipa ■court of Buffalo in favor of the, defendant upon the merits.

      George S. Wardwell, for app’lt; William Armstrong, for resp’t.
   White, J.

—According to the evidence of the defendant, in December, 1892, the defendant made an agreement with the plaintiff whereby it placed in his house on approval a natural gas heater, for which the defendant was to pay forty dollars if it fulfilled certain conditions and proved satisfactory to the defendant, and if it did not prove satisfactory then the plaintiff should take it back. The heater did not fulfill the conditions nor prove satisfactory, and the defendant notified several persons to that effect who came to inquire about and demand payment for the heater on behalf of the company. A controversy having arisen concerning the arrangement, the defendant promised to pay the plaintiff ten dollars and return the heater. As thé defendant claims, it was to be taken out by the plaintiff.

The plaintiff contends:

1. That, conceding the facts to be as. testified by the defendant upon the trial below, he became liable to pay for the heater because he failed' to return it to the plaintiff within a reasonable time after discovering that it failed to comply with the warranty, and

2. That the defense of an accord and" satisfaction as pleaded is not sustained by the evidence.

. The evidence as to a breach of warranty is very satisfactory, and the finding of the trial ¿hurt upon that question is well supported. I think the inference of the trial court, that the defendant was not bound to return the heater to the plaintiff at any place other than that at which' it was delivered to him by the plaintiff, is not without evidence to support it. The plaintiff claims it was to be returned by the defendant to the plaintiff. There is not a word of evidence as to where it was to be returned to, nor can it be said that the only inference to be drawn from the evidence of the plaintiff’s witnesses themselves is that the defendant was to take the heater back to the place where he first saw it. To my mind the presumption would' be, under such circumstances as are here disclosed, that the plaintiff would expect to receive it back at the place where it delivered it, and such is the import of the evidence of the defendant himself, where he says De Knight came to the house and disconnected the heater and promised to “ take it out ” if the defendant would give him ten dollars. If the claim of the defendant was true, the agreement to pay ten dollars was without any consideration whatever, in my opinion, for the reason that if the heater failed to comply with the warranty the defendant had a perfect right to return it at the place ° where it was delivered to him, in the absence of an express agreement that it should be returned to the possession of the plaintiff at some other place.

I am also of the opinion that the notice given by the defendant to the employes who came to demand payment for the heater was sufficient, especially as the fact of such notice came to the managing agent. The question as to the sufficiency of the notice seems to me to have but slight, if any, analogy to that which arises concerning the acts of an agent being within or without the scope of his authority. The efficacy of the notice in this case would not seem to be dependent upon the means by which it was given, but rather upon the fact of its having been received by Mr. Bell, the managing agent for the plaintiff, and he testifies that he called several times to see the defendant at his office between December and April, in consequence of such, a notice through Halpin, who made the contract originally with the defendant, and Halpin says the first dispute about the heater occurred about the 1st of February; and while Halpin testifies that no dissatisfaction was expressed by the defendant except as to some of the apparatus not being furnished and which was afterward furnished, it is at variance with the defendant’s version of the matter. There was a failure to establish an accord and satisfaction as pléaded by the defendant, but the judgment appealed from is supported by evidence, and unless it was incumbent upon the defendant to return the heater to the plaintiff at a place different from that at which he received it, and I do not think it was, the judgment was right upon the merits, and should be affirmed, with costs.

Hatch, J., concurs.


text:
    Alexander Solomon, Resp’t, v. Victor Vallette, App’lt.

      (Buffalo Superior Court, General Term,

      Filed July, 1894.)
    Master and servant—Discharge.
    In an action for services, where the term of employment has not expired at the time of trial, the servant, upon wrongful discharge, can recover only to the time of the commencement of the action.

      Appeal by the defendant from an order denying a motion made by him for a new trial on the minutes of the judge presiding at the trial, and from the judgment against him herein, entered upon the verdict of a jury.

      Edward L. Jellinek, for app’lt; B. Frank Dake, for resp’t.
   White, J.

—This action is prosecuted for the recovery of $1,295, alleged to have been due from the defendant to the plaintiff at the time of the commencement of this action on January 19, 1887, under a contract of employment between the parties.

The complaint alleges that on September 25,1886, the plaintiff and defendant entered into a contract in writing, in and by which the defendant employed the plaintiff to perform certain work and services for the defendant, for which the defendant agreed to pay the plaintiff thirty-ñve dollars a week from September 25, 1886, until September 25, 1887; that the plaintiff entered upon the performance of the contract, and so continued until January 12, 1887, when he was wrongfully discharged from service by the defendant ; that the plaintiff’s wages were paid by the defendant to January 8, 1887, and that by reason of the premises there was at. the time of the commencement of the action due from the defendant to the plaintiff $1,295.

The only issuable fact alleged in the complaint denied by the answer is the wrongful discharge, and so the allegations of the complaint as to the term for which the plaintiff was hired and the compensation to be paid to him as stated in the complaint must be taken to be true for the purposes of this action. Code Civ. Pro. § 522; Southwick v. First Nat. Bank, 84 N. Y. 420; Arnold v. Angell, 62 id. 508.

The action was tried December 1, 1888, aud the plaintiff recovered for twenty-seven weeks and three days services at the rate provided by the contract as alleged in the complaint, being for the period of time between January 8, 1887, and July 20, 1887, at which last named date the plaintiff had entered upon other employment. A mass of testimony was given on both sides upon the trial of this case to which exceptions were taken, but perhaps it may be fairly said that it bore more or less directly upon the main question, to wit, whether or not the plaintiff had been wrongfully discharged from service, although at first blush much of it seems too remote.

At the close of the plaintiff’s case the trial court ruled:

1. That under the complaint it was competent for the plaintiff to recover wages as such which accrued subsequent to the commencement of the action if he was wrongfully discharged, and which was to all intents and purposes holding that upon the wrongful discharge of the plaintiff, assuming it to have been such, future wages to the end of the term became due and payable immediately, and

2. That by the terms of the hiring the plaintiff has the right to continue in the defendant’s service until the defendant should terminate the employment by a notice in writing.

The defendant excepted to these rulings.

The court charged the jury that if the plaintiff is entitled to recover at all, he is entitled to recover wages from January 8 to July 20, 1887. This was also excepted to.

The court was requested by the defendant to charge that if the plaintiff is entitled to recovery at all, he can recover only to the time of the commencement of the action. This was refused and exception taken.

I think these rulings were erroneous, and that the exceptions to them are well taken.

It will certainly require no extended argument nor the citation of authority to establish the proposition that where wages are payable by the week ' and default is made in payment an action can be successfully maintained to recover only such installments as have become due when the action is begun, in the absence of any agreement between the parties that a different rule shall be applied. The principle of law applicable to the facts of the case; as conceded by the pleadings, seems to have been lost sight of for the moment, and another, which would be applicable to a different state of facts, adopted. If, for instance, the action was for damages caused to the plaintiff for his wrongful discharge, he could have recovered such damages as he could have shown he had sustained at the time of the trial, and the wages which he would have earned up to that time would have been prima jade only, the measure of such damages. It is only in cases where the term of employment has expired at the time of the trial that the whole amount of wages for the whole term under the contract.furnishes prima facie the proper measure of damages recoverable in an action like this. In such a case wages as such are recoverable only up to the time of the commencement of the action. Dickens v. Hassel, 26 How. Pr. 528; Huntington v. Ogdensburg & L. C. R. R. Co., 33 id. 416; Costigan v. Mohawk & H. R. R. Co., 2 Den. 609 ; Heim v. Wolf, 1 E. D. Smith, 70 ; Thompson v. Wood, 1 Hilt. 93 ; Toles v. Hazen, 57 How. Pr. 516; Everson v. Powers, 60 id. 166 ; Wallace v. Devlin, 36 Hun, 275 ; Moody v. Leverich, 4 Daly, 401, 402; Weed v. Burt, 78 N. Y. 191; Everson v. Powers, 89 id. 527 ; Gifford v. Waters, 67 id. 80; Fuchs v. Koerner, 107 id. 529; 12 St. Rep. 318; Howard v. Daly, 61 N. Y. 369.

The ruling that the contract of hiring could be terminated by the defendant only by a notice in writing seems also to have been made upon the theory that the plaintiff by virtue of the instrument of October 1, 1886, had acquired such an interest in the property to which his agency related as made such a notice a condition precedent to the right of the defendant ever to regain possession of the property. No such right was asserted by the answer; in law the answer admitted the right of the defendant to resumé possession at the end of the year of service, and for that reason the ruling was erroneous. Moreover, no such right is given to the plaintiff, nor is any such condition precedent created against the defendant by the instrument in question. It contains no provision that the plaintiff shall either be employed beyond the year or that he shall have any custody or dominion over the property to which his agency relates at any time except as the agent and servant of the defendant. To say that under the instrument in question the dominion over the property which was the subject of the agency had passed to the agent as against the principal, as it seems to me, would do violence to the elementary principle of law which regulates the relations of principal and agent. By its terms the instrument, under the most liberal construction which the plaintiff can claim, provides that at the expiration of the year the defendant shall continue the business for thirty days after revoking the agency, for the purpose of enabling the plaintiff to purchase the property. There is not a word in the instrument which would compel the defendant to employ the plaintiff, after the expiration qf the year, or to leave the property in his possession after that time. The provision is that after that time he, the defendant, will carry on the business himself.

' But, in any event, the rule applies that the facts admitted by the pleadings must control, and the only fact in dispute under the pleadings is whether the plaintiff was rightfully or wrongfully discharged, and not whether the defendant was guilty of a breach of some contract not set forth in the pleadings.

These views necessitate a reversal of the order and judgment appealed from.

Titus, Oh. J., and Hatch, J., concur in result.

Judgment and order reversed.


author: Titus, Ch. J.

text:
    Daniel Daley, Resp’t, v. The Union Dry Dock Company, App’lt.

      (Buffalo Superior Court, General Term,

      Filed July, 1894)

    Master and servant—Appliances.
    The master is not bound to furnish only a tool reasonably safe for the purpose designed and to exercise a reasonable degree of care in keeping it in repair ; when that is done, the servant accepts the risk and the master is discharged from all liability.
    Appeal from judgment in favor of the plaintiff, entered upon the verdict of a jury, and from order denying motion for a new trial on the minutes.

      Sprague, Morey, Sprague & Brownell, for app’lt; Tabor, Sheehan, Cunneen & Coatsworth, for resp’t.
   Titus, Ch. J.

—The defendant appeals from a judgment in favor of the plaintiff, entered upon the verdict of a jury, for $2,446.89, and from an order denying the defendant’s motion for a new trial on the minutes of the judge. .

The plaintiff was employed as a laborer by the defendant in its yards on Genesee street in this city, and in common with other laborers who were engaged in removing steel plates to be placed upon vessels. They were in charge of a foreman who directed their work. At the time of the accident they were hoisting one of these plates from the track to get it onto a truck, when it would be moved by a running block and pulley to the place where it was to be used on the vessel.

These plates or sheets were from eight to twelve feet long, two to four feet wide, and about three-fourths of an inch thick. A tool or clamp, called a dog, was placed over the edge of the plate, midway from the ends, and fastened with a set screw, the end of which was screwed up against the plate. It was tapered down to a blunt point, with a concave depression in the end, so that it left a sharp round rim or ring which, when screwmd up against the plate, would press into the side of it and make it fast. According to plaintiff’s witnesses this tool had been used some years, and the point or sharp edge of the rim had been worn off, leaving a fiat, smooth surface projecting further on one side than on the other. The screw had on occasions before this failed to do its work, letting the plate slip from the dog and fall. The plaintiff had been employed at this work but two days before the accident, and had no knowledge of the worn condition of the screw in the dog, or of the fact that it had before failed to do its work. There is no evidence that the tool had been inspected by the defendant to ascertain its condition or need of repairs, nor were any repairs made on it until after the accident. After the plate had been raised by the pulley, and the men were pushing it along towards the vessel, the plaintiff having hold of it to keep it steady with one hand on the lower edge and the other on the side, it slipped from the dog and dropped to the platform, pulling the plaintiff down with it and cutting off his fingers. This plate weighed from 1,000 to 1,200 pounds. In fastening the screw a lever about two feet long was used, and, when it was in good condition, a boy could screw it up tight enough to holdi One of the men, who had been engaged in this work for some time, says he set the screw on this occasion, and tightened it up as hard as he could, but as they were moving the pulley along it jarred against one of the sheets and dropped out of the dog.

There is no question but what the dog was a proper tool for the purpose for which it was used, 'but it is claimed that the accident occurred by reason of allowing the screw to get out of repair, so that it did not properly and safely do the work for which it was designed. One of the witnesses testifies that a few weeks before this, while the foreman was there, the plate slipped and fell. “The end of the screw was so dull that on the edge it was partly worn, with the exception of one little piece that was left from the pressure of the plate was a little higher than the other; that it was worn down as low as the end of the depression in the tool, except one little place.” Other witnesses testify that die screw had been worn down and was dull. That the screw was dull and worn is not disputed by the defendant’s witnesses, but tjbere is a conflict in the evidence about whether this dog and screw had ever before failed to do its work, the defendant’s witnesses saying they never knew of an accident of that kind to happen.

This presented a fair question of fact for the jury to pass upon, and we think the evidence warrants the conclusion reached by them.

This case, then, is taken out of the rule laid down in some of the cases, that the fact of the long use of an appliance on countless occasions, which uniformly answered its purpose, without accident, may be continued without the imputation of negligence or carelessness. Burke v. Witherbee, 98 N. Y. 562 ; Marsh v. Chickering, 101 Id. 396; Stringham v. Hilton, 111 Id. 188; 19 St. Rep. 621.

It is claimed by the plaintiff, from this evidence, that because the screw was worn on the end one side more than the other, that when it was screwed up against the plate the longest point only would indent the plate, so that in a horizontal position from the center of the plate the weight of the plate upon the screw would, if it happened to be on one side, tend to tighten the screw, and if on the other side, loosen it and turn the screw backwards, and allow the plate to fall out.

We think, at least, the question of the defective condition of the screw was a proper subject for the jury to pass upon. The court properly explained to the jury the duty of the master in supplying suitable and proper appliances for the use of the servant, saying in substance that the master was not bound to furnish the best implements known or those of superior design, but only a tool reasonably safe for the purpose designed, and to exercise a reasonable degree of case in keeping it in repair, and when that is done the servant accepts the risk and the master is discharged from all liability. This was the question submitted to the j nry, and in doing so we do not think error was committed by the court.

. The only other question necessary to consider is the exception of the defendant “to the charge that the plaintiff testified that he had not seen or examined the dog is material upon the question of the defendant’s negligence. I ask the court to charge that that fact is not a material fact upon the question of defendant’s negligence.” Tifie exception and request were misleading, to say ihe least, as the court had not charged any such proposition in connection with the defendant’s negligence. In speaking of the plaintiff’s negligence the court said: “The work was not complicated ; it required but little skill, and, as appears, it was preformed by an ordinary laborer; he had never seen the dog employed before ; there is no evidence that he had any opportunity or that there was any occasion for him to examine or that he did examine it in the course of his employment, or that he had ever been requested to do so.” This was said while the court was speaking of the facts bearing upon the plaintiff’s negligence. The court then proceeded to charge the jury upon the law of the defendant’s negligence, and after fully instructing them upon that question proceeded as follows: “The other question for you. to determine is, if the dog was there open for inspection, so that the plaintiff could have seen it, so that when it was attempted to be fastened to this plate he could have observed by' the exercise of ordinary care in connection with the performance of his duties that the tool was defective, had sufficient knowledge to be able to comprehend the fact, and in this instance he permitted the use of the tool, consented to the use of it in that condition, he would be responsible for the use of it, and could not call upon the defendant to recompense him for damages. As bearing upon that proposition you will take into consideration the length of time he had been at work there and the opportunity he had of examining this dog. His testimony is “that he had never seen it before ; that it had never been called to his attention.” All this was said in connection with the question of the plaintiff’s assumption of the risk. If there was a defect in the tool, and if the plaintiff had reasonable opportunity for knowing it, he assumed the risk and could not recover against the defendant for the injury. How here in the charge is the plaintiff’s lack of familiarity with the dog spoken of as material upon the question of the defendant’s negligence. Counsel for the defendant was laboring under a misapprehension as to the connection in which this language was used, and the court evidently understood his request as bearing upon the plaintiffs negligence, as in that connection only was the language used, for he had fully and at length called the attention of the jury to this testimony, not in connection with or as bearing upon the defendant’s negligence, but as a fact which, if true, deprived the plaintiff of his right to recover.

We tfiink, in view of what was said in • the charge and the theory upon which the case was tried by both parties, that it must have been understood by the jury as the court had already charged and evidently so understood the request to mean.

The only claim of negligence of the defendant which is supported by the evidence was that the dog and screw had got out of repair and that the defendant had not taken the proper precaution to inspect it and ascertain its defective condition and repair it, but allowed it to remain in that condition for a long time, and the question of the plaintiff’s knowledge of the condition was not material as bearing upon the question of the defendant’s negligence and had no relevancy to it, and the refusal of the court to charge was upon an irrelevant and immateral matter. The case was not tried upon any such theory, and no claim had been made up to that time by the plaintiff or by the charge of the court that the plaintiff’s knowledge of the condition of the dog had anything to do with the question of the defendant’s negligence, The case was, so far as the defendant’s liability is concerned, fairly and favorably, at least to the defendant, submitted to the jury by the court in the charge, and we think no error was committed. Kissenger v. N. Y. & Harlem, R. R. Co. 56 N. Y. 538.

This disposes of the questions raised by the counsel for the defendant in his brief, and if the conclusion reached is correct the judgment should be affirmed, with costs.

White, J., concurs.

Judgment affirmed, with costs.


author: Hatch, J.

text:
    Michael Cordelia, Resp’t, v. James W. Dwyer et al.

      (Buffalo Superior Court, General Term,

      Filed July, 1894.)

    1. Negligence—Cause of accident.
    Where damages are occasioned by one of two causes, for one of which the defendant is, and for the other he is not, responsible, plaintiff must fail if his evidence does not show that the damage was produced by the former cause.
    2. Same.
    He must also fail, if it is just as probable that they were occasioned by the one as the other cause.
    Appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes of the court.

      Spencer Clinton, for app’lts; John Laughlin, for resp’t.
   Hatch, J.

—Defendants were contractors engaged in the work of excavating for a reservoir. The dirt was removed by means of dump cars run upon a railroad. The road was movable, the rails being spiked to ties laid upon the surface of the ground, and, as the process of excavation required, it was moved from place to place by the workmen engaged in and about loading the cars, who worked under the direction of a foreman. The ties of the road were not of a uniform size, and from this fact, and the uneven surface of the ground upon which the road lay, they did not in all places rest upon the ground. To secure a practical bearing for the road under such places the workmen shoveled in dirt under them. All of the workmen engaged in moving the structure, in leveling off the uneven surface, and in shoveling the dirt under the ties. When the road was last moved, plaintiff had assisted. The whole structure was open and visible to ordinary observation. There were two classes of cars, both of which had been some time in use at this place and elsewhere in like service, and were such as were in ordinary use for this kind of work. The car which is involved in this controversy dumped its load from a particular side, which projected about two feet farther beyond the wheels than the other side, the object being to prevent the dirt from falling on the track when unloading. On the occasion in question this car was detached from the others standing upon the same track, and plaintiff was engaged in shoveling dirt into it from a trench about three feet below the road, and about eight and one-half feet below the top of the box of the car. The material was wet sand and clay. As plaintiff was bent over the car suddenly tipped and fell upon him, inflicting the injuries complained of. . The excavation was of great magnitude; innumerable loads of earth had been taken out with these cars, and, while they sometimes ran off the track or tipped off, it does not appear that such an accident had ever happened before, or that a car had ever tipped while being loaded. We have examined with much care the evidence given upon the trial, and are unable to find that degree of certainty in it which authorized the court to submit, and the jury to find, negligence on the part of the defendant which caused the injury. It is quite evident that the road was a rude, uneven structure, made to be frequently and quickly moved, in order to facilitate the work, and designed for no other purpose than a tramway for the dumps. As it lay upon the ground, the uneven surface, the failure of support for the ties, and its proximity to the excavation where the men were at work, were all open and visible at a glance. When the men moved it they supported it as they deemed sufficient for its practical use. There was no latent defect about it which, in any view of the evidence, contributed to the accident. If the car tipped over by reason of a failure to support the ties with dirt, or by allowing the track itself to remain lower on that side, it was the fault of plaintiff or the other workmen, who were chargeable with furnishing the support for it. If there existed either of these conditions,-they were such as were known to exist frequently in the structure, and of which, if plaintiff had looked, he would be immediately apprised, as he worked by the immediate side of the track where the car stood. So it must be said that as to whatever danger there was in the structure itself plaintiff took the risk, and6 if improperly laid, or insufficiently supported, it was the result either of his own negligence or that of a fellow-servant, as both had placed it there. Williams v. D., L. & W. R. Co., 116 N. Y. 628; 27 St. Rep. 760; Sweeney v. Page, 64 Hun, 172; 46 St. Rep. 163.

The car itself, and the methods by which it was operated, were such as were ordinarily used and no negligence can be predicated upon the use of either. So that in this regard defendant discharged his obligation to furnish reasonably safe implements and place for their use. What occasioned this accident is uncertain. One theory is that by reason of the construction of the car it was thrown out of balance in loading. The basis for this claim is that the operator was obliged to lift the wet sand and clay a distance of eivht and one-half feet in reaching the top of the box, from which an inference- arises that he was unable to throw the material to the center of the car ; that it accumulated upon the projecting side, and by reason of its great weight toppled it over. There is no proof that the dirt accumulated upon the side of the car; no one saw it after it was thrown in until the car fell over, and the effect of the, car’s falling would be to throw it to that side. Whether this inference be true or false is matter of speculation far removed from certainty; and in view of other facts is merely conjecture. Counsel for plaintiff assigns another cause for the accident equally weighty : “ It is reasonable to suppose — indeed, the conclusion is irresistible — that with this heavy car, containing some two thousand pounds or more of dirt on that side, which was standing on this track, caused it to settle much lower than they found it after the car had fallen off, or was removed from it. One witness testifies that he thinks the' heavy load put on that side of the car caused the track to sink, thus permitting the car to tip. Another says the track would sink or spring up and down on the side as the cars were moved over it. If this track sagged or settled down as the car was being loaded, it shows that it was improperly constructed.” There is still another theory, and some evidence to sustain it, which the court submitted to the jury, that the tipping over was caused by plaintiff and other workmen excavating too close to the ties, thus undermining the foundation. If there was evidence authorizing the jury to find that either one of the other theories caused the accident, the latter would be held negatived by the finding of the jury. But, as we have seen, the evidence leaves the cause of the accident problematical, the subject of speculation and conjecture. Neither one of the causes nor all combined are sufficient to charge the defendant with negligence, unless we couple with the method of loading an obligation resting upon defendant to promulgate a rule or instruct plaintiff of the dangers to be apprehended. Assuming that it was dangerous if the load were not equally distributed over the car, and the one-sided loading was the proximate cause, an analysis of the testimony shows at least two conjectural, even probable proximate causes of the accident, for neither of which defendant is responsible. If it be due to the construction of the track or car, it was a risk assumed by plaintiff. If on account of fault in not placing the track upon a sufficient foundation, or if, after being placed, the foundation was dug away, to the negligence of plaintiff or a co-employee. It is said: “When the fact is that the damages claimed in an action were occasioned by one of two causes, for one of which the defendant is responsible, and for the other of which it is not responsible, the plaintiff must fail if his evidence does not show that the damage was produced by -the former cause. And he must fail also if it is just as probable that they were caused by the one as the other, as the plaintiff is bound to make out his case by the preponderance of evidence. ” Searles v. M. R. Co., 101 N. Y. 662; Grant v. Penn. & N. Y. C. Railroad, 133 id. 657 ; 45 St. Rep. 305 ; Taylor v. City of Yonkers, 105 N. Y. 209; 7 St. Rep. 332.

This rule is fatal to plaintiff’s recovery in any view we can take of the testimony, and renders unnecessary a consideration of the question whether the defendant owed a duty to instruct plaintiff or promulgate a rule regulating the loading of the cars or the operation of the road.

The j udgment and order should be reversed and a new trial ordered, costs to abide the event.

White, J., concurs.

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