author:
Bockes, J. : Boajbdman, J.,
      Learned, P. J.

text:
    BRYAN HAYES and JOHN STUDDERT, Respondents, v. ADAM A. KEDZIE, Appellant.

      Appeal to County Court — New trial — when allowed — Demurrer — when abandoned — Draft—conversion of, by gratuitous bailee — delivery of.

    The right of a plaintiff, upon an appeal from a judgment of a Justice’s Court, to a new trial in the County Court depends upon the amount claimed in the pleadings.
    Where a defendant, after a demurrer has been overruled, pleads to the merits, he must be deemed to have abandoned his demurrer.
    The plaintiffs having a claim against the county of Broome, for support rendered to an indigent person, the same was presented to, and allowed by the superintendents of the poor, at twenty-four dollars and thirteen cents. A draft for this amount was drawn by them on the treasurer, to the order of plaintiffs or bearer, and, as plaintiffs were not present, the defendant, one of the superintendents, took it to deliver to them. The same was subsequently presented by some person to the treasurer and paid. The plaintiffs never received the draft, nor any portion of the avails thereof. The defendant claimed that he had delivered the draft either to the plaintiffs or to a Mr. Buss. In an action by the plaintiffs to recover the amount of the draft, the jury found in favor of the plaintiffs. Held,

    That the fact that the defendant was a mere gratuitous bailee did not prevent the plaintiffs from recovering.
    That defendant might relieve himself from liability either by showing the loss of the draft, without gross negligence on his part, or that it was taken from Mm by force or fraud.
    That the defendant could not insist that the plaintiffs had no title to the draft, on the ground that the same had never been delivered, as the plaintiffs were entitled to ratify Ms act in taking the draft as their agent. (Learned, P. J., dissenting.) '
    This action originated in a Justice’s Court, where the defendant succeeded. The plaintiffs appealed to the County Court, where a new trial was had, and a verdict was rendered for the plaintiffs for thirty-two dollars and fifty-seven cents, on which judgment was entered with costs, in all $120.09. A motion was made in the County Court for a new trial on a case and exceptions, which was denied, whereupon the defendant appealed to this court from the judgment and order.
    The complaint contained two counts : The first was for the sum of twenty-seven dollars and interest, for money had and received ; the second was for twenty-four dollars and thirteen cents, the amount of an order or draft which the plaintiffs alleged the defendant had received under a promise to deliver it to them, and that he had neglected and refused to do so, although requested, and they demanded judgment for fifty-two dollars and thirteen cents, with interest from February 11, 1868, besides costs.
    The defendant demurred to the complaint, and the demurrer being overruled by the justice, he answered to the merits. To the first count he interposed a general denial, and to the second a general denial, and further, that the order was delivered to the payees, and that payment thereof was made to them. The evidence given on the trial in the County Court related to the draft or order solely, and the recovery, was for the amount of the draft.
    The defendant, when examined on the trial as to the disposition made by him of the draft, stated that it was either delivered to .the plaintiffs or to a Mr. Euss, who was supervisor that year, and had the orders issued by the board of supervisors for the locality in which plaintiffs lived.
    The facts of the case, briefly stated, were as follows: Hayes, Borrill & Co., who at the time of the bringing of the action were represented by the plaintiffs, had a claim against the county of Broome for relief rendered to an indigent person, which claim was presented to the superintendents of the poor of that county (the defendant being one), and the same was audited and allowed at the sum of twenty-four dollars and thirteen cents. A draft or order for this sum was drawn by the superintendents on the treasurer of the county, payable to Hayes, Borrill & Co., or bearer, and the payees not being present to receive it, tbe defendant took it to deliver to tbem. Tbe draft was subsequently presented to tbe treasurer and was paid by bim. But according to tbe verdict of tbe jury, tbe defendant did not deliver it to tbe payees, nor was payment of it ever made to tbem. Tbe jury rendered a verdict against tbe defendant for tbirty-two dollars and fifty-seven cents, tbe amount of tbe draft, witb interest.
    At tbe close of tbe trial, tbe defendant’s counsel moved for anon-suit upon tbe ground, among others, tbat tbe County Court bad no jurisdiction of tbe appeal. Tbe motion was denied and tbe ruling was duly excepted to.
    Sucb other facts as are deemed material to tbe examination of tbe case, appear in tbe following opinion.

      T. <& A. More, for tbe appellants.

      Alex. Cwmrrvmg, for tbe respondents.
   Bockes, J. :

By pleading to tbe merits, tbe defendant must be held to have withdrawn or abandoned bis demurrers. (Peck v. Cowing, 1 Denio, 222 ; Irvine v. Forbes, 11 Barb., 587 ; Harper v. Leal, 10 How., 276 ; Jones v. Thompson, 6 Hill, 621.) Tbe ease must be examined on the issues raised by tbe answer to tbe merits.

It is urged tbat tbe appeal in tbis case was on tbe law only, that it was not a case for a retrial in tbe County Court, for tbe reason tbat tbe claim litigated did not exceed fifty dollars. (Code, § 352.) Tbis point was not raised in tbe County Court, either by special' motion, as in Houghton v. Kenyon (38 How., 107), or by objection on tbe trial, if indeed it could have been made available there in either mode. True, tbe defendant moved for a nonsuit at tbe close of tbe trial, on tbe ground tbat tbe court bad no jurisdiction of tbe appeal, but for what particular reason does not appear. Tbe motion was therefore baseless, in so far as we can see. But tbe case was one for retrial. Tbis question was to be determined from tbe pleadings. By tbe complaint, tbe plaintiffs’ claims for which judgment was demanded exceeded fifty dollars. Sucb claims determined tbe right of tbe parties to a retrial on tbe appeal. (Code, § 352 ; Ovenshire v. Adee, 27 How., 368 ; Hobbs v. Wetherwax, 38 How., 385 ; Thompson v. Pine, 12 N. Y. Sup. Ct. Rep. [5 Hun], 647.) The case is, therefore, before us on the merits.

It was undisputed on the trial, that the draft was duly made out for Hayes, Borrill & Oo., on the treasurer, payable to the firm or bearer, and that the defendant took it into his possession to deliver to the payees; also, that it was afterwards presented to the treasurer and was paid by him in due course of business. The principal question litigated, was whether the defendant made delivery of the draft to the payees, as he, assumed to do. The jury found that he did not, and it may be added that by the verdict, it was found also that the payees never received payment of the draft from any quarter. Then the case is this : (1) That the defendant took the draft for the payees, to be delivered by him to them ; (2) that he omitted to make delivery of it; (3) that it was afterwards presented to the drawee for payment by some one other than the payees, and was paid by him in due course of -business ; and (4), that when called upon by the payees for the draft, the defendant took the ground that he had delivered it to them in fact. These facts made out a prima faoie case against the defendant as matter of law. Thus the onus was cast upon him to show something, discharging him from liability. The plaintiffs had made application to him for the draft, and could not obtain it. The rule was laid down in Coykendall v. Eaton (37 How., 438-441) that a mere gratuitous bailee who delivers the property to a wrong party, or, who after demand does not in any way account for its loss, is liable to the true owner for its value. Now what defense did the defendant interpose? First, that he had in fact delivered the draft to the payees. But the jury found againt him on this issue. Secondly, he sought to show that he delivered it to Mr. Russ, as if this fact if proved would discharge him. But as to this even, there was a conflict of evidence, and the jury may have found against him also on this issue. Indeed, if the case turned upon this issue such must be deemed to have been the finding. It was going quite as far as the court could properly go in this case, holding in mind the evidence submitted, to instruct the jury that delivery to Russ would discharge the. defendant in case, the payees authorized such delivery or gave it ratification, for it might well have been insisted that there was no evidence whatever of such authorization or ratification. Now the onus was on the defendant. It lay with him to relieve himself from liability. This he might do by showing the loss of the draft withoiit gross negligence on his part, or that it was taken from him by force or fraud. But neither of these defenses was attempted. He put his defense at all times when called upon to answer for the draft, on other grounds, to wit, that he had made delivery to the payees or to Buss. This was what he claimed when approached upon the subject before the suit was commenced, and this was insisted upon in the pleadings and on the trial. In this defense he failed. The jury found against him on a very serious conflict of evidence. He must be held to be concluded by their verdict.

It is urged that the plaintiffs failed to show any title to the draft, that it was never delivered. But the defendant is not at liberty to hold this position. He assumed an agency and duty in regard to the draft which the plaintiffs might recognize, and to which they might bind him by a ratification. It has been repeatedly held that where one party assumes the performance of a trust or duty for the benefit of another, although without his knowledge at the time, the latter may affirm the trust or duty and enforce its due performance, (Commercial Bank v. Warren, 15 N. Y., 577-580 ; Heermans v. Clarkson, 61 id., 171.) Here the plaintiffs have elected to hold the defendant to the obligation he assumed to perform for their benefit. The case is therefore the same as if the defendant, on the plaintiffs’ request, had taken charge of the draft to make delivery of it to them. Thus the draft became the plaintiffs’ property in the hands of the defendant, and he was liable to them for it to the extent of the obligation which he assumed.

The conclusion reached on this examination of the case,'based on .the verdict of the jury in favor of the plaintiffs on every material question of fact, necessitates an affirmance of the judgment. And it may be here remarked that the view above taken of the ease leaves no question for consideration on the exceptions to the charge of the judge or on his refusal to charge as requested.

The judgment must be affirmed, with costs.

Boajbdman, J.,

concurred, believing that the defendant assumed to act as the agent of the plaintiffs, and not as a superintendent, in taking the order.

Learned, P. J.

(dissenting):

The defendant was one of the superintendents of the poor, and as such held the order in question. It had not been delivered to. the plaintiffs, and had not become their property. If, as might very possibly be the case, there had been another order in the defendant’s possession, of the same amount, the plaintiffs could not have insisted that one of these orders was their property, and the other was not. Treating the orders as bills of exchange, they were in possession of the drawer, not delivered. Until delivery, the plaintiffs had no title to any one of them. If the superintendents who drew this order, or any one of them, had chosen to destroy it, the plaintiffs would have had no cause of action on the ground of the destruction of their property. It does not add to their rights that the defendant, one of these superintendents, intended to deliver this order to the plaintiffs. If he did deliver it, then of course they have no cause of action. If he did not deliver it, then their claim against the county has not been paid. If the superintendents had voluntarily handed this order, and all the orders to John Doe, it would have been a great violation of official duty; and they might possibly have been liable -to the plaintiffs for a neglect to audit.' But the order would not have been the property of 'the plaintiffs, so that they could sue for the negligent carrying of it, or for its conversion.

The plaintiffs claim that, as the defendant took the order for the purpose of delivering it to the plaintiffs, the payees, he became at their option, their agent.

But the objection to that view, is this: The defendant, as one of the superintendents, was rightfully in possession of the order. His mere intention to deliver it to the plaintiffs at some future time was not an act on their behalf, as their agent, which they could ratify. And his .possession of the order was not the plaintiffs’' possession. Even his carrying it from the place where it was drawn to some other place, was an act which he could do as superintendent. It was not an act done on behalf of the plaintiffs and constituted no delivery to them. There was nothing for them to ratify.

To illustrate : If a firm, being indebted to some person, should make a note for the amount, payable to bearer, and one of the firm should take the note, with the intention of giving it to the creditor, and should afterwards give it to some other person, the creditor could not treat this as a conversion, or as the negligent act of a bailee. It is said by the plaintiffs that this order was made out for them. Undoubtedly it was the intention of the superintendents to deliver this order to the plaintiffs. But it all rested in intention. And the intention to deliver this order to the plaintiffs did not make it theirs. Some act was necessary by which it should pass from the control of the superintendents to some other person, either to the plaintiffs or to some person acting for the plaintiffs, other than the superintendents themselves. If the superintendents or the defendant, had delivered the order to some other person who assumed to act as the agent of the plaintiffs, it would be competent for the plaintiffs to ratify the act of that assumed agent. But no such case exists. Bor neither the superintendents, as a body, nor the defendant as one of them, can be considered as the agents or agent of the plaintiffs. Neither they, nor he, assumed to act as such.

If, for instance, this order was in fact left with Mr. Buss for the plaintiffs, and Mr. Buss received it on their behalf, they might ratify the act of Mr. Buss in receiving it. Bor then it would have been delivered by one who had full control over it, to another whose only control would be that of agent, actual or assumed, of the plaintiffs. But until such delivery, or some similar delivery, the defendant and the other superintendents had the full title to and possession of the order, and were not in any sense agents of the plaintiffs, actual or assumed.

The judgment should be reversed, with costs.

Present — Learned, P. J., Bockes and Boardman, JJ.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    WILLIAM W. WATROUS, Respondent, v. PATRICK KEARNEY and JOHN LILLYBRIDGE, Appellants.

      Attorney — uncmthorized appea/i'ance of — Attachment ■ — upon whom notice of proceedings must he served — Appeal — what considei’ed on.

    The defendants were brought into court upon an attachment, issued for violating an injunction, and there appeared by an attorney, and waived the filing of interrogatories. An order of reference having been made by consent, to take proof as to the facts, the same attorney appeared before the referee; subsequently another attorney appeared in his place, and, upon his death, a third firm appeared. An 07'der having been made upon a report made on such reference, adjudging the defendants guilty of a contempt and imposing a fine, the defendants moved to set the same aside on the ground that they had not authorized any attorney to appear for them; that they had not waived the filing of interrogatories, and that they had had no notice of the proceedings before the referee. Held, on appeal from an order denying such motion,
    That, under the circumstances, plaintiff was entitled to consider the attorneys as authorized to appear for the defendants; and that if, in fact, they had no such authority, the defendants’ remedy was against the attorneys themselves.
    That the questions.whether the injunction was lawfully granted by the county judge and as to the amount of the fine could only be considered on an appeal from the order adjudging defendants in contempt.
    Although an attachment must be personally served upon the party proceeded against, yet notice of the subsequent proceedings may be given to his attorney in all cases where the personal presence of the party is not required.
    Appeal from an order refusing to set aside an order adjudging defendants Kearney and Lillybridge in contempt, and imposing a fine.
    An order was made June 10, 1871, on affidavits, ordering an attachment to issue against the defendants for violating an injunction. The attachment was personally served. The defendants were brought into court and appeared by attorney or counsel. They waived the filing of interrogatories, and the matter was referred, by consent, to a referee, to report as to the facts and as to the damages. Mr. Johnson appeared for the defendants on the return of the attachment, and thereafter before the referee, till October 5, 1871; about that time Mr. Ramsay appeared for all the defendants in the action, and after his death, Messrs. Smith, Bancroft & Moak appeared for them. Proof was taken before the referee, and a report was made. On his report, and on the proof and on notice to the attorneys who appeared for the defendants in the action, the order adjudging Kearney and Lillybridge in contempt and imposing a fine, was made. These defendants now move, on an affidavit made by one of them, and on affidavits of other persons, to set aside these proceedings. Among other grounds the affidavit of one of these defendants states that they did not authorize or direct any attorney or counsel to appear ; that they never waived interrogatories; that the proceedings were without their knowledge, after the arrest and the giving of bail.

      Ed/wa/rd K. Ola/rh, for the appellants.

      Giles W. ffotchldss, for the respondent.
   Learned, P. J.:

If the proceedings to punish for contempt were regular and on due notice, then we cannot inquire, on this proceeding, whether the injunction was lawfully granted by the county judge. That was a matter passed upon, when the court made an order punishing these defendants for contempt. It should be reviewed by appeal from that order. The same is true as to the amount of the fine. If that was wrong, or if the costs and expenses should have been taxed before imposing the fine, the remedy of the defendants is by appeal. "Where parties have been brought into court and have been fairly heard, the decision is conclusive, unless reversed by appeal, on all the matters involved in it. Nor can we here examine over again the justice or injustice of the fine. The facts were ascertained before the referee and acted upon by the court, and its action remains without any appeal therefrom.

The only question here is whether the defendants Kearney and Lillybridge were duly before the court.

They were arrested on the attachment; they gave bail, and they actually appeared in court on the return of the attachment. They say (or one of them says) that they employed no attorney or counsel. This is contradicted by a recital in the order of the court; by the affidavit of Mr. Johnson, who appeared for them, and by the affidavit of Mr. Hotchkiss, the plaintiff’s attorney and counsel. The defendants must be mistaken in this.

Mr. Johnson states, that he appeared for these defendants, from time to time, before tbe referee till tbe 5th of October, 1871. About that day, Mr. Ramsay appeared for all the defendants in the action. On his death, and about three months afterwards, Messrs. Smith, Bancroft & Moak appeared for all the defendants.

The plaintiffs attorney was fully justified in treating Mr. Johnson, Mr. Ramsey and Messrs. Smith, Bancroft & Moak, successively, as the attorneys of the defendants. They had regularly appeared as such, and in regard to Mr. Johnson, he appeared for them in court and in their actual presence. This is a case where, if the appearance of the attorneys was unauthorized, the remedy should be sought against them.

But the defendants insist that none of these proceedings could be regularly served on their attorneys. The attachment, of course, must be served personally. But there is no reason why the party attached should not have the privilege of acting by attorney, when his personal presence is not required. It is said that it is in the discretion of the court to give notice to the party proceeded against of the hearing on the question of contempt. (Yan Sant. Eq. Pr., 632.) But however this may be, notice to his attorney, after the due commencement of the proceedings by attachment, must be sufficient.

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

Present — Learned, P. J., Bockes and Boardman, JJ.

Order affirmed, with ten dollars costs and disbursements for printing.


author: Bockes, J.:

text:
    JEROME FORT, Plaintiff, v. JOHN M. WHIPPLE, Defendant.

      Negligence — liability of principal to employe, for negligence of co-employe — when question of negligence should be left to the jury.

    A. contracted to build a bridge, and employed tbe defendant, a skillful builder, and gave bim tbe sole management and control of tbe work and of tbe manner of carrying it on, all tbe other employes being in all respects subject to bis orders. Under defendant’s direction and supervision a scaffold was erected, secured by stay-latbs, upon wbicb laborers worked and materials were placed. Some of these laths were removed by direction of defendant, tbe plaintiff aiding in so doing. Subsequently the scaffold fell, and plaintiff was injured thereby. The manner of constructing the scaffold and the material of which it was composed, were described to the jury.
    In an action by the plaintiff to recover the damages sustained by the injury occasioned by the falling of the scaffold, the plaintiff was nonsuited. Held, That under the circumstances of the case, the principal was responsible to plaintiff for any negligence of the defendant;
    That an action could be maintained against the principal or the defendant, or against both jointly.
    That the questions as to the negligence of the defendant and the contributory negligence of the plaintiff should have been left to the jury.

      Quaere, as to whether an employe would be liable to a co-employe for a mere nonfeasance or neglect of duty, in a case in which the principal himself would not be liable.
    Motion for a new trial on exceptions, ordered to be beard in tbe first instance at tbe General Term, after a nonsuit directed at tbe Circuit.

      J. E. Dewey, for tbe plaintiff.
    Tbis was not a proper case for a nonsuit. If there is any evidence tending to show negligence of either party tbe question is for tbe jury; so, also, as to tbe primary cause of tbe accident'producing tbe injury; and a nonsuit is erroneous. {Maccmley v. The Mayor, etc., dec. in Ct. Apps., Dec. 12, 1876, Eolger, J.; Abst. 4 N. Y. Weekly Dig., 135; Goughbry v. The Globe Wool Go., 56 N. Y., 124; Woolf Mel v. Sixth Av. It. It., 38 id., 49; Oolt v. Same, 49 id., 671; S. & R. on Neg., 13, n. 2 [2d ed.]; Mahan v. Gent. Pank, etc., B. B. Go., Ct. Apps., Sept. 19, 1876; Abst. 14 A. L. J., 330; Ackert v. Lcmsvng, 59 N. Y., 646.) Where tbe facts in issue depend upon inferences to be drawn from tbe facts proved, it is always a question for tbe jury and not for tbe court. {Sherwood v. Merc. M. Ins. Go., Ct. of Apps., May, 1876, Allen, J.; Abst. 2 L. and Eq. R., 51 id., 365-367; Justice v. Lang, 52 N. Y., 328, 329.) Assuming tbe defendant to have been a servant also, which was not proved, be was bable for bis own personal negbgence. (S. & R. on Neg., §§ 112, 114, 601; Witte v. Hague, 2 D. & R., 33; 16 E. C. L., 67.) Tbe master and servant may be sued jointly or separately for tbe negligence of tbe latter. (Wright v. Wilcox, 19 Wend., 343; Phel/ps v. Wait, SO N. Y., 78; Sv/ydam v. Moore, 8 Barb., 358; Monfort v. Hughes, 3 E. D. Smith, 591; S. & R. on Neg., § 115.) Where, by reason of tbe servant’s negbgence, a recovery is had against his master, he may recover over against the servant not only the damage recovered but the expense of the litigation. (Grand Trunk, etc., v. Latham, 63 Me., 167; Greene v. If. R. Go., 4 T. R., 589; Pritchawd v. Hitchcock, 6 M. & G., 165.) Though the parties were fellow-servants, the plaintiff could recover against the party actually guilty of the wrong. (S. & R. on Neg., § 112; Pack v. The Mayor, etc., 8 N. Y., 225; Story on Agency, § 453, d.) Here he stood in the place of the employer as to the plaintiff. (SiegéL v. Sobante, 2 T. & 0., 353 ; Whart. Neg., § 222.) If the master himself works with and injures one of his servants by his negligence, he is liable therefor; and if he has partners in the business, they are liable also. (Ashworths. Stamwix, 3 E. & E., 701; Mellors v. Shaw, 1 B. & S., 437; Lansing v. If. Y. O. R. R. Co., 49 N. Y., 528, 529.) Although defendant knew or was informed it would be dangerous to take up the stay-lath connecting the bents of the scaffold together, yet he persisted and continued to remove them, giving assurances of safety. (Patterson v. Wallace, 1 Macq. H. L. Cas., 748; S. C., 28 E. L. & E. R., 48; Lowing v. If. Y. 0. R. R. Go., 49 N. Y., 521.) The plaintiff here had the right to rely with entire confidence upon the superior skill, experience and knowledge of the defendant. (Oonnolly v. Poillon, 41 Barb., 366; affmd., 41 N. Y., 619, n.; S. & R. Neg., § 92; Whart. Neg., § 222.)

      L. W. Fiske, for the defendant.
    The facts not being disputed the question whether there was negligence or not is a question of law, and the learned judge rightly refused to let the case go to the jury. (Ernst v. Hud. Ri/o. R. R. Go., 35 N. Y., 9; Bernhawdt v. Rems, and Saw. R. R. Go., 23 How., 166, Ct. of Apps; Blackwell v. Wisewell, 14 id., 258.) The burden of proof is upon the plaintiff in actions like this. (Buwton v. Hud. R. R. R. Co., 18 N. Y., 248; Lamb v. Oawnden and Amboy R. R. Go., 46 id., 271; Galdwell v. If. J. Steamboat Go., 47 id., 291; 4 Kéyes, 103; 56 Barb ; 493.) To enable them to make out a prima facie case they must prove, first, that the defendant owed some duty to plaintiff and resting upon him to perform. (See 20 N. Y., 50, 51; Guwran v. Warren Chemical Mfg. Go., 36 N. Y., 153; Loop v. Litchfield, 42 id., 357; 38 Barb., 173, Graves, J.; 51 N. Y., 495; Webs. Die., tit. “ Ng.”; St. Louis and O. R. R. Go. v. Todd, 36 111., 409; Gawdner v.
      Rea/rtt, 3 Denio, 232, 236; S. <te R. on Neg., § 2; Tona/wanda B. B. Go. v. Mvnga, 5 Denio, 255, 267; Todd v. Coohell, 14 Oal., 57; GcmvpbeTl v. Bea/r Rim. Min. Go., 35 id., 679.) They must prove that the change in the temporary stay-lath was in fact dangerous ; that defendant knew it to be so, and this change actually caused the scaffolding to fall. This must be proved and not left to conjecture. (1 Daly, 431; 29 Barb., 234, 236; Rood v. N. Y. and Erie B. B. Go., 18 id., 80, 85 ; Blythe v. Bi/rmingham Works, 11 Exch., 781.) It must be shown conclusively, that the scaffolding féll because of some act or omission of defendant. (18 N. Y., 2, 8, 252; 2 Kern., 236 ; 47 N. Y., 29 ; Payne, Admrx., v. Forty-second St. B. Go., Snpr. Ct. [Gen. T.], Aug. 3, 1875.) They must show that the plaintiff did not know what kind of business he was engaged in and could not know the risks; that defendant was careless and heedless in his supervision of the work, and kept himself out of the way of danger to himself. The law of this State is well settled that when a person hires out to perform hazardous work, he becomes his own insurer. (See Gilnow v. Erie B: B. Go., decided Dec. 26, 1875, Ot. Apps.; 1 N. Y. W. Dig., 544; Malone v. Ra/rter, Ot. Apps., decided July, 1876; S. & R. Neg., § 86; 39 N. Y., 468; 25 id., 564-567; 49 Barb., 324; Owen v. W. Y. O. B. B. Go., 1 Bans., 108; 17 N. Y., 153; 13 Alb. Law Jour., 241; Ila/mey v. Dvnlop, H. & D., 193; 44 N. Y., 480; 47 id., 290.) They must show that the scaffolding did not fall from some latent defect or an unavoidable accident, for men are never held liable for latent defects or for unavoidable accidents. (Harvey v. Bunlojo, H. & D., 193; Galkins v. Brvyn, 44 Barb., 424 ; 44 N. Y., 480; 8 Cow., 175.) They must show that the defendant did not exercise ordinary prudence; that he followed some unusual plan; that he failed to take some precaution, which a person of experience would have taken. (18 Barb., 80 ; Limingston v. Adams, 8 Cow., 175, 176; Exchange Fine Ins. Go. v. Dela/wane and R. Gandí Go., 10 Bosw., 180.) The master not being liable, the servant cannot and ought not to be, either in principle or by authority. (Mayor, etc., Albany v. Ovnbvff, 2 N. Y., 165 ; see Judge Strong’s reasoning, p. 180.) The law has been settled in England in the same way. (Southcote v. Stanley, 1 H. & N., 247.) The eases in this State which hold that there is no liability for negligence except where there is a privity of contract or some duty owed, are in principle like the above, and would seem to preclude any possibility of recovery. (Oougkbry v. Globe Woolen Go., 1 T. &. C., 452; Loop v. Litehfield, 42 id., 351; Bwrrett v. The Bmger Mfg. Co., 1 Swee., 545 ; Losee v. Clute et al., 51 N. Y., 495.)
   Bockes, J.:

At the trial the plaintiff was nonsuited, and the case comes before the court on a motion for a new trial, by the plaintiff, on exceptions ordered to be heard in the first instance at General Term.

As to the leading facts of the case, as it is now presented on the exceptions, I do not understand the parties to differ in any essential respect. It was proved that one James W. Shipman had á contract to build an iron bridge across Schoharie creek in Montgomery comity. He gave no personal supervision to the work, but employed the defendant, who was a skillful builder, and put him in charge furnishing the materials himself and himself hiring and paying the laborers. The defendant had the j>ersonal charge and superintendence of the work, and the plaintiff was a common laborer under him and was subject to his direction and control. To aid in the construction of the bridge, a scaffolding was erected on which the laborers worked, which was also loaded to some extent, with material. This scaffolding was composed of bents, stay-lathed together to keep them firm and in place. Some of these stay-laths having been removed, the scaffolding fell, carrying down the laborers and among them the plaintiff, who received in consequence severe injury. The scaffolding was erected under the defendant’s personal supervision, and he directed the removal of the stay-laths, the plaintiff aiding in the work as directed by the defendant. The purpose for which the scaffolding was erected, the materials of which it was composed, and the particular mode or manner of its completion, with the safeguards by which it was intended to be kept in place, as well as its mode of use, were all, as matter of evidence, before the court and jury. The plaintiff requested to have the case submitted to the jury on the question of the defendant’s liability, but the court declined so to submit it, and directed a nonsuit, to which ruling the plaintiff excepted.

The question here presented is not whether the plaintiff, in point of fact, made out a cause of action entitling him to a verdict in his favor for the damages he had sustained by the falling of the scaffolding, but whether he made out such a case as gave him the right to have the opinion of the jury on the subject. It becomes nécessary, therefore, first, to inquire whether there was any insuperable objection, in law, to a recovery, growing out of the relation of the parties, both being engaged in the work as employes of the same principal; and, second, whether there was sufficient proof of neglr gence on the part of the defendant, and of an absence of contributory negligence on the part of the plaintiff, to raise a question of fact on the evidence.

It seems that the defendant was put in charge of the work by the contractor, Shipman, and directed the plaintiff and others, all of whom were under him, and were in all respects subject to his direction. As regarded the mode of conducting the work, he had entire and sole control. Every thing in that regard was left to him; he had its sole management and direction; and the injury complained of, if chargeable to him, grew out of such personal supervision and conduct. In the performance of the work, he represented the principal, and stood in his place. He was more than a mere fellow-servant with others, charged with a special duty, he was the general agent of the principal, placed there by the latter to direct and control the others. As was said by Judge Allen, in Malone v. Hathaway (61 N. Y., 5-10), such an agency must not be confounded with the position of a mere foreman, one charged with special duties, but performing them under general or special instructions from the principal, who retains and has the general supervision of the business, and to whom, and to whose immediate direction, all are subject. The subject now under discussion received a very critical review by Judge Allen, in Malone v. Hathaway (supra), rendering its further examination by us, by argument, quite useless, indeed, presumptuous. The learned judge there fully recognizes the familiar rule of law, that the master is not liable to his servant for an injury consequent upon the negligence of a co-servant in the same general service, when the latter has not been negligently employed or kept in service, and this even although the injured and the one causing the injury are not equal in station and authority, But he says that an exception is grafted upon the rule, to the effect that “ when the servant by whose acts of negligence or want of skill other servants of the common employer have received injury, is the ‘ alter ego ’ of tbe master, to whom the employer bas left every thing, then the middleman’s negligence is the negligence of the employer, for which the latter is liable.” He adds: The servant in snch case represents the master, and is charged with the master’s duty.” True, he says to whom he has left every thing,” but by this is meant “ every thing ” connected with the particular subject or thing on which the alleged negligence is predicated — in this case, the manner of constructing the scaffolding and the means employed in maintaining it in place. As to this branch of the work, there had been an entire delegation of power and control, by Shipman, to the defendant. The duties pertaining to this branch of the work were not performed at all under Shipman’s direction, but as to that the defendant had entire and sole control. So it was held in the case cited that where the master withdraws from the management of the business (in this case, the construction and due guarding in place of the scaffolding), and intrusts it to a middleman or superior servant, the master can be held liable to a subordinate for the negligent acts of one thus acting in his stead. This is but a reiteration of the rule laid down in Corcoran v. Holbrook (59 N. Y., 517); in Flike v. Boston and Albany Railroad Company 53 id., 549), and in Laning v. New York Central Railroad Company (49 id., 521); and it was also declared, in Corcoran v. Holbrook, that the rule was applicable as well to individuals as to corporations.

Now if it be here admitted, as I think it must be, that Shipman, the principal, was bound to exercise proper care to prevent the accident which occasioned the injury complained of, and that he delegated the duty he owed to his employes to the defendant, then the latter represented Shipman as agent, and both were liable alike for the culpable negligence of the latter to the injury of the employes, under the rules of law applicable to this class of actions. In that case an action would lie against either or both jointly for the injury. (Suydam v. Moore, 8 Barb., 358; Phelps v. Wait, 30 N. Y., 18.) There was, therefore, no insuperable difficulty in law growing out of the relation of the parties to each other as co-employes.

We are not now called upon to decide the question whether an action, may or may not be maintained for negligence by one employe against another, where both, are engaged in the same service under a common employer, in a case where the latter would not be liable. Of course an action would lie in such ease for a direct injury as a trespass; but, perhaps, there might be a question whether an action would lie irnsuch case for a mere non-feasance or simple neglect of duty. (See remark of Denio, J., in Blackstock v. N. Y. and E. R. R. Co., 20 N. Y., 50, 51.) But this question is not necessarily before us in this case, in the view above taken of it.

Having reached the conclusion here stated, the remaining question is whether the plaintiff was entitled to have the opinion of the jury on the evidence as to the defendant’s liability to him for negligence. How the jury would have found, whether for the plaintiff or for the defendant, is not the question. H there was evidence submitted calling for the exercise of their judgment, the case was for them to determine. That there was such evidence cannot, I think, be denied. How they would have construed it, and what would have been their conclusion, is quite a different matter. The purpose of the structure; its mode of construction; how it was protected in place, and whether or not it was improperly or carelessly weakened by the removal of the stay-laths on the defendant’s order, were facts to be considered by the jury. They were to determine whether the defendant was culpably at fault in these particulars. And it was not only necessary that they should find that the injury to the plaintiff was occasioned by the defendant’s negligence, but also the further fact that the plaintiff was himself free from fault, that is, that his negligence in no way contributed to the accident. Unless the jury should find in the plaintiff’s favor on both these propositions he could not recover.

It is also trae that when a person hires out in a hazardous employment, he becomes, in a general sense, his own insurer against the risks incident to it. He then must take the chances of injury from such dangers as are fairly within the line of duty under the employment, and he must graduate his demand for compensation in view of the risks incident to the service.

It is urged that the plaintiff was clearly guilty of contributory negligence, that he aided in the erection of the structure, knew of its condition, knew of tbe removal of tbe stay-latbs, yet continued to labor upon it. On tbe other band it may be urged that be was assured by tbe action, if not by tbe words of tbe defendant, on whose assurances be might rely, that tbe structure was safe. In this aspect of the case, it would become a question for tbe jury whether tbe plaintiff was guilty of rashness, whether be failed to obey tbe dictates of common prudence in remaining on tbe scaffold, and tbe question would still remain on tbe whole case, whether tbe defendant bad acted towards tbe plaintiff with due care and prudence. (Span v. Ely, 15 N. Y., Sup. Ct. Rep. [8 Hun], 255, 258, 259 ; Patterson v. Wallace, 28 Eng. Law and Eq., 48.) I am of tbe opinion that a case was made for tbe jury on tbe proof. It follows that a new trial must be granted.

Leaiiked, P. J., concurred in tbe result. JBoakdman, I., not sitting.

New trial granted, costs to abide event.


text:
    ISAAC D. SLEIGHT, Respondent, v. THE CITY OF KINGSTON, Appellant.

      Municipal corporation — sewers — liability for dischm'ge of contents of, into a fm'ry slip.

    Tlie plaintiff, for more than forty years, ran a ferry across the Rondout creek from the village of Rondout to Sleightsburgh, and had the right to enter into a slip in Rondout to receive and discharge passengers. In 1867, the said village, for the necessary drainage thereof, caused a new sewer to he constructed, by which they diverted an old water-course from its former channel and discharged the same, together with surface water and sewage, just above the said slip, whereby they filled the same with sand and dirt and prevented him from (Entering the same.
    In an action by him to recover damages therefor, held, that he was entitled to recover.
    Appeal from a judgment in favor of tbe plaintiff, entered upon tbe trial of tbis aetion by tbe court without a jury.
    Tbis action was commenced against tbe village of Eondout, on tbe 19tb day of October, 1871, by tbe plaintiff, wbo, for more than forty years, bad run a ferry-boat from tbe Tillage of Bondout across tbe Bondout creek to Sleightsburgh, and was subsequently continued against tbe city of Kingston, wbicb, in 1872, succeeded to all tbe rights and liabikties of said Tillage. Tbe action was brought to recoTer damages occasioned by tbe wrongful act of tbe defendant in constructing a sewer, by which an ancient water-course was direrted from its former channel and discharged, together with surface water and drainage, just aboTe a ferry slip wbicb tbe plaintiff was entitled to enter to receire and discharge passengers, whereby tbe same was filled up and obstructed by sand and dirt.

      S. L. Stebbms, for tbe appellant.

      M. SúIioonmaJcer, for tbe respondent.
   Bockes, J.:

That tbe plaintiff bad tbe right to use tbe slip or landing-place described in tbe complaint for tbe purposes of bis ferry cannot be denied, and it is also indisputable that be was in such use at tbe time and times bis right was interfered with and injuriously affected by tbe opening of tbe new sewer. Tbe learned judge before whom tbe case was tried finds, upon sufficient evidence, that a great quantity of dirt, sand and graTel was carried down in tbe new sewer just aboTe tbe plaintiff’s slip, and, by tbe natural action of tbe water thereon, created a bar or obstruction across its entrance, wbicb hindered and preTented him at times from entering it with .bis-ferry boat for tbe reception and discharge of freight and passengers according to bis custom. His right to ferry at this place was sufficiently proTed. He was in tbe actual and undisputed exercise of such right, and bad so exercised it uninterruptedly for a great number of years. Tbe fact that tbe stream crossed by bis ferry was a public highway raised no presumption against bis right to ferry, for be was entitled to use this highway in common with all others for all public and lawful purposes. He might run bis boat on tbe stream, and, with tbe privilege to land, bis right to ferry became complete, on compliance, of course, with tbe law as to license. Actual occupation of the banks of the stream raised a presumption of right to use them for the purpose of the ferry. No attempt was made on the trial to overcome this presumption. But superadded to sucb presumption of right, the plaintiff established his title to the slip alleged to have been injuriously affected by the defendant’s acts by positive grant. The plaintiff’s right to maintain his ferry, and to make landings at the point in controversy, seem well established.

Thé question then is, whether the defendant unlawfully interfered with the plaintiff’s property and rights.

There was, as it seems, a diversion of the water from its natural current into and through the new sewer; and there was also a collection of the surface water to some extent, which was turned into it and somewhat increased the volume of its discharge. The waters so gathered were conducted through the sewer and discharged into the creek at a point just above, and in close proximity to, the plaintiff’s slip. Those waters carried down with them great quantities of dirt, sand and gravel, which, from natural causes, were deposited at and across the entrance to the slip, to an extent which at times prevented the plaintiff from entering with his ferry boat to receive and land passengers and freight. Thus were his rights impaired by a serious interruption of his business.

The city authorities, in the exercise of municipal power could not divert from its natural channel and turn a stream of water upon the plaintiff’s land with impunity. (Bradt v. City of Albany, 12 N. Y. Sup. Ct. Rep. [5 Hun], 592; Thompson v. Allen, 7 Lans., 459 ; Byrnes v. City of Cohoes, 12 N. Y., Sup. Ct. Rep. [5 Hun], 602.) In the last case cited, it was laid down that although public officers should be fully protected in the proper discharge of their' duties, yet when they go so far as to create a nuisance on the land of another, they stand in the same position as private individuals, and it was there further said that if the effect of turning the water on another’s lands, was to destroy his cultivated fields, then it created a private nuisance.

The same rule of liability would obtain in case surface water arising from rains and snows, was collected into a single channel and cast in large volume upon the premises of another. (Bastable v. City of Syracuse, 15 N. Y., Sup. Ct. Rep. [8 Hun], 581.) The law applicable to misfeasance and non-feasance of municipal corporations and to public officers who may exercise both judicial and ministerial powers, was well considered in this case, and need not be bere further considered. (See Rochester White Lead Co. v. City of Rochester, 3 N. Y., 463 ; Conrad v. Village of Ithaca, 16 id., 158; Richardson v. City of Boston, 19 How. [U. S.], Rep., 263 ; Barton v. City of Syracuse, 37 Barb., 292 ; in Ct. of App., 36 N. Y., 54.) In the case in 3 Comstock, it was said, in substance, that it was tbe duty of a municipal corporation to construct its sewers so that they should not become nuisances ; and in West v. Village of Brockport (16 N. Y., 161, note) the same doctrine is fully enunciated. So, too, Judge Grier says, in Richardson v. City of Boston (supra), that it may be the duty of the city to make drains along or under the streets, but they cannot be so constructed as to create nuisances to the adjoining owners. Within the authorities cited, and there are others of the same import, the learned judge was well authorized to hold the defendant liable on the facts found in this case.

We are of the opinion that the record discloses no error of which the defendant can justly complain. Judgment affirmed, with costs.

LeaeNed, P. J., concurred ; BoardmaN, J., taking no part.

Judgment affirmed, with costs.


author: Bookes, J.:

text:
    GEORGE McNAMARA, Appellant, v. PHILOTUS EDMISTER, Respondent.

      Sale — when title passes without delivery.

    One Murphy sold to the plaintiff 450 bushels .of buckwheat, and certain other articles, and gave a bill of' sale thereof, and, on the same day, delivered all the articles, except the buckwheat, and received the whole amount due.- The buckwheat was not to be delivered until it was threshed and made merchantable, which Murphy agreed to do. At the time of the sale, the buckwheat was standing in a field, part of a lot in shocks, and was pointed out to the plaintiff by Murphy. Subsequently, the latter informed plaintiff that he was ready to thresh, whereupon the latter requested him to store it in his granary until called for, which was done. To be merchantable, the buckwheat required to be cleaned after being threshed.

      This action was brought by the plaintiff to recover the buckwheat from the sheriff, who had seized it under an attachment issued against Murphy, while in his possession and before the same had been cleaned after being threshed. Held, that the title to the buckwheat passed to the plaintiff, and that he was entitled to recover.
    Appeal from a judgment in favor of the defendant, entered upon the report of a referee.
    This action of replevin was brought against the former sheriff of Broome county to recover certain buckwheat, seized by him by virtue of an attachment issued against one Murphy, which buck, wheat the plaintiff claimed to have purchased from said Murphy. The referee found, among other things: That, on the 28th day of September, 1875, one Daniel J. Murphy, a resident of Corbettsville, Broome county, N. Y., sold the plaintiff a quantity of personal property, which was specified in a bill of sale executed by said Murphy, and delivered by him to the said plaintiff, of which the following is a correct copy, viz.:

      “ Corbettsville, Sept. 28th, ’75.
    “ D. J. Murphy, sold to George MoNamara,
    450 bushels buckwheat, 65 cts........................$292 50
    100 bushels shelled corn, 65 cts....................... 62 50
    1 coffee mill..................................... 12 00
    40 gals, molasses, 56 cts............................. 22 40
    100 lbs. roasted coffee, 32 cts.....:................... 32 00
    Total.....:................................. $423 90
    “ To be delivered at Great Bend or Binghamton when threshed.

      “ Received payment,
    “D. J. MURPHY.”
    That, on the evening óf said twenty-eighth of September, the said Murphy delivered to the plaintiff, at his place of business in Great Bend, Pa., the coffee mill, molasses and roasted coffee, and that thereupon the said plaintiff paid to the said Murphy $423.90, the whole- amount of said bill of sale; that the buckwheat mentioned in said bill, when sold, was parcel of a lot standing in a field belonging to said Murphy, in shocks, and was pointed out to plaintiff, by Murphy, as he and Murphy stood together in an adjoining field; and that said buckwheat was then and there estimated by Murphy to be about 500 bushels; and it was then and there agreed, as part of the terms of the sale of the buckwheat, that Murphy should, as soon as the weather would permit, thresh and measure the 450 bushels sold by him, and make it merchantable ; that, after the sale, and when the weather became favorable, Murphy being ready to thresh the buckwheat, so informed the plaintiff, who, not being ready to receive it, requested Murphy to put it in his (Murphy’s) granary, and keep it there until he should call for it; that, by thresher’s measure, there was, of all the buckwheat when threshed, 490 bushels; and that after the whole was threshed it was all put into a granary belonging to Murphy, on his farm; and that about 470 bushels thereof was put into bins in said granary by itself, and about twenty bushels poured upon the floor, outside the bins; that, to make this buckwheat merchantable, it has to be cleaned again after threshing; and that after its seizure by the defendant by attachment, and its replevy by the plaintiff, it was cleaned again before it was sold; that the 450 bushels of buckwheat sold plaintiff was not, before its seizure by attachment by defendant, separately measured, nor entirely separated from the original lot of buckwheat threshed, nor set or placed apart by itself in the bins, but was mixed with about twenty bushels more, nor was it, before said seizure, cleaned the second time; that, in pursuance of the command of an attachment issued against Murphy, the defendant, on the 23d day of October, 1875, seized 470 bushels of buckwheat, or thereabouts, then being in the said granary of Daniel J. Murphy, and took possession of the same; that the buckwheat so seized included the 450 bushels bought by the said plaintiff of Murphy, as above found, and which, with twenty bushels more, was lying in the bins in Murphy’s granary.
    The referee’s finding, that the grain was cleaned “ the second time ” after its replevy by plaintiff, would appear to imply that it was cleaned when threshed. There is nothing, however, in his findings or the case, to show any previous cleaning, unless the process of threshing be considered to be such.

      Soovill do Do Witt, for the appellant.
    The bill of sale having been made in good faith, and without any intent to defraud the creditors, etc., the title to the property included in the bill of sale passed to the vendee. (Andrew 8. Schoónmaker and Lefebra D. Gordon, Appellants, v. Richard A. Vervdlen et al., Respondents, 9 Hun, 138; Griffin v. Marquardt, 17 N. Y., 30; Thompson v. Ban-chard, 4 id., 307; Hanford v. Archer, 4 Hill, 272; Griswold v. Sheldon, 4 Comst., 581; Hoe v. Aclcer, 23 "Wend., 653.) After plaintiff requested Murphy to thresh and store the buckwheat, the latter became his bailee. (Clute v. Fitch <& Griswold, 25 Barb, 431; T&rry v. Wheeler, 25 N. Y., 525.) Murphy having put the buckwheat in his granary by direction of the appellant, he was released from doing any thing more, and the delivery to the appellant was complete. (Dexter v. Norton, 55 Barb., 272; T&rry v. Wheeler, 25 N. Y., 520.) The buckwheat was fully identified by showing it to the appellant, by Murphy, when it stood in shocks in the field. (Orofoot v. Bennett, 2 N. Y., 258 ; Kimberley et al. v. Patchin, 19 id., 330; Russell v. Ca/rrington, 42 id., 118; 51 id., 292; 25 id., 278.) The buckwheat having been stored in the granary, the right of possession and the actual possession- were united, and Murphy had no control over it other than as bailee. {Olyphant v. Baker, 5 Henio, 379; Dexter v. Bevins, 42 Barb., 573 ; Bacon et al v. Gillman, 57 N. Y., 656.)

      D. 8. Richards, for the respondent.
   Bookes, J.:

No question arises in this case under the statute of frauds, nor is it claimed that the sale of the buckwheat by Murphy to the plaintiff was with intent to hinder, delay or defraud the creditors of Murphy. And it may be here added that the contract between Murphy and the plaintiff was, in form, a complete bargain and sale with full payment of the purchase-price. Nothing remained for the purchaser to do but to take possession. The buckwheat was parcel of a lot standing in a field in shocks, and was pointed out at the time of sale; Murphy agreeing to thrash it out, as soon as the weather would permit, and make it merchantable by due winnowing. Had the grain then been in the granary, instead of in the shock, the case would have been like that of Kimberly v. Patchin (19 N. Y., 330), and the title would have passed. It was held in the case cited that, upon a sale of a specified quantity of grain, its separation from a mass undistinguishable in quality and value in which it is included, is not necessary to pass the title when the intention to do so is otherwise clearly manifested. (See, also, Russell v. Carrington, 42 N. Y., 118, and Crofoot v. Bennett, 2 id., 258.) In such case the title passes without actual separation or delivery of the property. Bnt it is said the grain was thereafter to be threshed and made merchantable. So in Terry v. Wheeler (25 N. Y., 520), the property was to be transported by the vendor to a place named for delivery. Notwithstanding this, it was held that the sale was complete, and that the title passed to the purchaser. The title passes to the purchaser on a sale of personal property without delivery (Wetmore v. Jaffray, 16 Sup. Ct. Rep. [9 Hun], 140), save where something remains to be done, which, by the contract, is a condition precedent thereto. (Terry v. Wheeler, 25 N. Y., 520; see, also, Bates v. Coster, 8 Sup. Ct. Rep. [1 Hun], 400, and cases there cited.) There was no condition precedent to the passing of the title in this case.

There is something more in the case in hand than appeared in the cases cited. When the vendor here was ready to thresh, he was directed by the purchaser to put the grain in the granary and keep it there until he should call for it. The vendor threshed it out and put it in the granary as directed. From this time most certainly must the transaction be deemed to have been an executed sale, so as to pass the title. The decisions in the cases cited seem to require a reversal of the judgment directed by the referee in this case.

Judgment reversed, new trial granted, with costs to abide the event, and reference discharged.

Learned, P. J., and Boardman, J., concurred.

Judgment reversed and new trial granted, costs to abide event, and reference discharged.


author: Bocees, J.

text:
    MOSES BALLOU, CHARLES H. ANGELL and OTIS H. BALLOU, Respondents, v. WILLIAM H. PARSONS and ARTHUR W. PARSONS, Appellants.

      Action on contract — Tmrden of proof— admissions in pleadings — cannot he contradicted— Amendment to pleadings — must he actually made — evidence of quality of goods.

    Where, in an action upon a contract, by which the plaintiff agreed to make for the defendants twenty-five tons of paper at eight cents per pound, which plaintiffs alleged that they had made and offered, and were at all times ready to deliver to defendants, who refused to receive it, the latter alleged that the paper was not of the required quality; held, that the burden of proving that the paper was of the quality required by the contract, rested upon the plaintiffs throughout the entire trial.
    The complaint alleged that the plaintiffs offered to deliver the paper to the defendants, and had ever since been willing and ready so to do; the answer contained an averment that the defendants refused to accept the paper under the contract, and the reply contained substantially the Same averment. Held, that a finding by the referee, even if sustained by the evidence, that the defendants had accepted the paper under the contract, could not be sustained, as it contradicted the admissions of the pleading.
    Where a complaint alleges that the defendants have refused to accept certain goods, and the plaintiff, upon the trial, seeks to amend the same by alleging that they were accepted, he must, if the defendants so insist, actually amend the pleadings by inserting the requisite allegations, in order that the latter may answer the same if they desire so to do.
    Upon the trial, the quality of the paper being in issue, witnesses were asked and allowed to answer against defendants’ objection and exception, as to what degree of care was used in its manufacture. Held, that the evidence was inadmissible; that the quality of the paper when completed, and not the amount of care used in its manufacture, was the question before the court.
    Appeal from a judgment in favor of tbe plaintiffs, entered on the report of a referee.
    The complaint is in assumpsit and contains two counts. The first is for twenty-five tons of hanging paper, alleged to have been sold and delivered at the agreed price of eight cents per pound; the second is on contract to make for the defendants twenty-five tons of hanging paper at the price of eight cents per pound to be paid on delivery, and it is averred that the plaintiffs made the paper and offered to deliver it to the defendants and were at all times ready to deliver it as agreed.

      To the first count the defendants interposed a general denial, and to the second they set up the special contract and averred a breach in this, that the paper was not delivered within the time agreed upon for its delivery, and was defective in quality, and that they refused to accept it on the contract and offered to return it.
    In reply the plaintiffs averred that the contract was a contract to manufacture and deliver according to sample, and that they made the paper and delivered it as agreed, but that the defendants refused to accept it on the contract, although they ultimately received it and appropriated it to their own use. The answer and reply were verified.
    Evidence was given pro and con as to all the matters in issue. The referee found for the plaintiffs for the full amount claimed. Judgment being entered the defendants appealed to the General Term.

      U. G. Paris, for the appellants.

      JD. A. Boies and A. I). Wait, for the respondents.
   Bocees, J.

The recovery was allowed on the special contract to manufacture twenty-five tons of hanging paper, of a specified quality, at the price of eight cents per pound, payable on the delivery of the goods. The parties were at issue on the pleadings as to all the material facts of the case, hence it was incumbent on the plaintiffs, as a prerequisite to a recovery for the full contract-price, to establish the contract and show its performance on their part, or what in law would be an equivalent to performance, an acceptance of the property by the defendants in performance thereof. This the plaintiffs assumed to do; aud they gave evidence in that regard, which they deemed sufficient to sustain a recovery, and rested the case. Thereupon the defendants moved for a nonsuit, on the ground, among others, in substance, that the paper proved to have been manufactured and sent to them, was inferior in quality to that called for by the contract ; and that they had refused to accept it in performance of the contract for that reason. The referee denied the motion and ruled as follows: That as to the quality of the paper, the defendants had the affirmative of the issue; and that the plaintiffs might answer the evidence of the defendants on that issue.” In this ruling, to which exception was interposed, I am of the opinion the referee was in error. The plaintiffs could not lawfully recover for the full sum agreed to l)ejocád, without proving performance of the contract on their part. There was no waiver of performance by the defendants in any respect, either on the pleadings or during the trial. It was therefore incumbent on the plaintiffs, in order to a full recovery, to establish the fact that the paper manufactured for the defendants was of the quality agreed upon by the parties. The affirmative of this issue was with the plaintiffs at all times to the end of the trial; so long as the defense was insisted on, it would remain with the plaintiffs to establish the fact that the paper was such in quality as the contract called for; and as to this the affirmative would continue with the plaintiffs, whatever might be the state of the proof. Proof that the defendants had accepted the property, would support or tend to support the plaintiffs in the affirmative of the issue, the maintenance of which rested on them. But the issue between the parties would remain the same, and the affirmative of the issue would continue with the plaintiffs. It was therefore error to hold as matter of law, all material facts being in issue between the parties, and the action being one based on an executory contract, that the defendants had the affirmative of the issue as to the quality of the paper sent them under the contract.

The referee found as matter of fact that the paper was accepted by the defendants on the contract, excepting the last parcel of 9,844£ pounds, and that said latter quantity was delivered or tendered to them. The defendants insist that the finding as to an acceptance of the paper on the contract, is against the averments of the parties in the pleadings and contrary to the evidence. The complaint does not aver either delivery or acceptance, but charges only that they “offered to deliver * * * and have ever since been ready and willing so to do.” In the defendants’ answer there is an averment that they refused to accept the paper under or in performance of the contract, and the plaintiffs in their reply substantially reiterate this averment. Thej then state that as to the first parcels forwarded, the defendants wrote them that they “ would not accept it on the contract,” and as to the last parcel the averment is that they tendered it to the defendants, but “ they refused to receive the same upon the contract.” Thus stands tbe ease on tbe pleadings as regards tbe acceptance by the defendants of tbe paper under tbe contract, and it may be here added that tbe proof is in almost exact accordance with these sworn averments in tbe pleadings. It seems, therefore, that tbe finding of fact that tbe paper (excepting tbe last parcel forwarded) was accepted by tbe. defendants under tbe agreement, is against the averments in tbe pleading’s as there made by both parties. If it be suggested that an amendment of tbe pleadings was allowed, it must be answered that it nowhere appears that there was an amendment, changing tbe record as to this averment of fact made by both parties. The referee held that be would allow an amendment of tbe complaint to correspond with the case made by the evidence. In tbe first place it does not appear that tbe evidence would establish an unqualified acceptance of tbe paper by tbe defendants on tbe contract. But it does not appear that any amendment whatever was in fact made. Tbe pleadings now stand as originally put in, unamended, and this too, notwithstanding the repeated and urgent protests of tbe defendants, who insisted with the utmost pertinacity, that if there was to be an amendment it should be made so that they might have knowledge of tbe case they were required to meet. Tbe defendants had a right to know certainly before the case was closed on tbe proof, in what respect tbe pleading of the plaintiffs was to be amended, as they would have ’the right to answer the amended pleading. This right was absolute in case tbe issues were to be changed in any material respect, as by changing or striking out averments already made. Such an amendment would be more than a mere formality; more than merely making the pleading to conform to tbe proof, without any change of tbe pleading in its substance and general scope. Judge Smith well remarks, in Wright v. Delafield (25 N. Y., 266, 270), that “the whole scope of these provisions of the Code, in respect to pleadings and amendments thereof, implies that all tbe material allegations of tbe plaintiff or defendant shall be spread upon tbe record; shall be actually inserted in tbe pleadings, and when variances are disregarded, it is upon tbe principle that they may be amended nunc pro tuno at tbe trial, and tbe court will so order to perfect tbe record so that it shall show the question really litigated and decided.” lie adds: The principle still remains that tbe judgment to be rendered by any court must be sectmdum alie gata et probata‘, and this rule cannot be departed from without inextricable confusion and uncertainty, and mischief in the administration of justice.” Now, in the case at bar, no amendment of the plaintiff’s pleading was in fact made; nor does it appear in what particular an amendment was desired or deemed necessary. It was not suggested on the trial, as we can discover, that any change was to be made, as to the averment actually inserted in the plaintiff’s pleading, to the effect that there was no acceptance of the paper by the defendants, on the contract. It stood a matter of absolute verity on the record as made up by the parties themselves, and in fact still remains there, that the defendants did not accept the goods on the contract. The finding of the referee, therefore, against the record, even if the proof would have sustained the finding, was error; for the averment having been made by both parties in the pleadings, it was not open to contradiction by proof. And it may be here added, that for aught that appears, the decision of the case by the referee was based very much, if not entirely, on his findings of fact in that regard.

There seems also to be an insurmountable difficulty in the case on the admission of evidence. The important and almost sole question litigated before the referee was, on the issue as to the quality of the paper manufactured and sent to the defendants under the contract, whether it answered the requirements of the contract made between the parties. A very great proportion of the evidence given on the trial bore on this issue. In order to strengthen their case, the plaintiffs gave evidence, against objection, to the effect that the workmen employed in the manufacture of the paper, exercised due care and diligence in that regard. The following questions were allowed, to wit: What care was taken in the manufacture of the last twenty-five tons compared with the first twenty-five tons ? What degree of care was used in the manufacture of the last lot of paper ? What degree of care was used in the manufacture of this paper % Answers were given by the witnesses respectively as follows: It was very carefully manufactured. So far as I saw it was manufactured with the utmost care. More care was taken with it than with the first lot. This evidence was manifestly improper. The subject of examination was not whether care and diligence were observed in its manufacture, but whether the paper in fact, when manufactured, answered the requirements of the contract made by the parties. No matter whether due care was or was not exercised in its manufacture, if the paper came out right according to the contract, and due care would not help the case, if even with due care the paper was not what the plaintiffs had agreed to make and deliver. " "What was the quality of the paper in point of fact, was the question. If it did not answer the conditions of the contract, the" defendants were not bound to accept or pay for it, however great had been the care exercised in its manufacture. This evidence was improperly allowed.

There are other grounds of error urged by the appellants, besides those above- considered; but the conclusion here reached renders their examination unnecessary. It follows that the judgment must be reversed.

A few words of a general character may not be here out of place, with a view to a retrial. The case is not complicated either on the law or the facts, as disclosed on the trial before the referee. On the undisputed facts, with a complaint containing the proper averments, it seems that the plaintiffs are entitled to recover (1) the full amount of $4,000 and interest, in case it shall be established by them that they fully performed the contract, on their part, to make and deliver twenty-five tons of paper of the quality required by its terms ; or (2), if of inferior quality to what was agreed upon, then the contract-price, less the difference between such contract-price and its market value, at the time and place it was received and used by the defendants.

This latter rule of liability grows out of the fact, that the defendants, although refusing to accept the paper on or in performance of the contract, yet received and used or sold it. If the paper was not of the quality agreed upon, they might refuse to receive it, in which case no recovery could be had against them. But if they receive and use the paper, they are bound to pay for it at its value, measured by a just rule of estimate.

Judgment reversed, new trial granted, with costs to abide the event, and reference discharged.

Present — Learned, P. J., Bookes and Boardman, JJ.

Judgment reversed and new trial granted, costs to abide event, and reference discharged.


author: Learned, P. J".:

text:
    GEORGE C. CLARK, Appellant, v. CHARLES G. MYERS, Respondent.

      Stockholders of manufacturing corporation —- liability of, to laborers — right to sue a single stockholder fo-r contribution.

    This was an action at law brought by the plaintiff, a stockholder of a manufacturing corporation created under the act of 1848, against the defendant, who was also a stockholder thereof, to recover a proportion of certain judgments recovered against plaintiff, under section 18 of chapter 40 of 1848, by laborers employed by the company, which judgments he had subsequently paid. Held, that he could not maintain an action at law against a single stockholder, but must bring a suit in equity against them all.

      Semble, That the stockholders were, as to the debts in question, to be considered as partners.

      Semble, That one surety cannot maintain an action against one of several co-sureties to recover the proportionate amount due from him, except in those cases in which the liability grew out of one single transaction of mere suretyship.
    Appeal from a judgment rendered at Circuit nonsuiting the plaintiff, after his opening, on the complaint.
    The plaintiff, defendant, and other persons, were stockholders in the Myers Steel and Wire Iron Company, a corporation organized under the general act of 1848 (chap. 40), for the formation of manufacturing, mining and other companies.
    Certain laborers employed by the company sued the plaintiff on his several liability, and recovered judgments against him, they having previously exhausted their remedy against the corporation. Their suit was based on the liability created by section 18 of chapter 40 of 1848, which provides that “ the stockholders of any company organized under the provisions of this act shall be jointly and severally liable for all debts that may be due and owing to all their laborers, servants and apprentices, for services performed for such corporation.”
    The plaintiff herein thereupon paid the judgments so recovered against him, and brings this action against the defendant, who was a stockholder of the same company at the time the debts to the laborers were contracted and were due, for contribution, seeking to recover only that proportion of the amount paid by him which the number of shares held by the defendant bore to the whole number of shares issued by the corporation.
    It was admitted that there were other stockholders who were not made parties to this action.
    After the opening of the case by the plaintiff’s counsel, the defendant moved for a dismissal of the complaint on the ground that the action should have been brought against all the stockholders, and would not lie against one of them.

      L. Ilasbrouck, for the appellant.

      C. G. <& O. McQ. Myers, for the respondent.
   Learned, P. J".:

In Easterly v. Barber (3 Weekly Dig., 178), the Court of Appeals recognized the doctrine that at law a surety might sue a co-surety separately for his proportion of the liability paid; and that in equity an action might be brought against all, and contribution might be adjudged among the solvent parties. And it is not doubted that in some f oim, either at law or in equity, the plaintiff in this case should have contribution. The only question is, may he sue one stockholder at law for his proportionate part, or must he sue all in equity.

The right of suing a co-surety for a proportionate part of money paid, will be found to have been applied to cases of liability growing out of one single transaction of mere suretyship. (Cowell, Admr., v. Edwards, 2 B. & P., 268; Beaman v. Blanchard, 4 Wend., 432; Parker v. Ellis, 2 Sandf. [Sup. Ct.], 223.) While, in the present case, the position of the plaintiff and defendant has been held to be substantially that of partners (Bailey v. Bancker, 3 Hill, 188), at least to the extent of these debts owing to laborers. (Richardson v. Abendroth, 43 Barb., 162; see as analogous, Wiles v. Suydam, 64 N. Y., 173.) And it has been said that the stockholders were answerable, as original and principal debtors, to the creditors of the company. (Corning v. McCullough, 1 N. Y., 76.) It is evident that the plaintiff and defendant are not mere sureties on some single transaction, as the parties were in Coburn v. Wheelock (34 N. Y., 440). They, and others with them, are substantially partners; liable, not for a single debt of some principal debtor, but for a class of debts which may be large; and it is doubtful whether the stockholders are, in any sense, sureties of these debts. Of course, there may be a right of contribution between persons other than co-sureties; that is, between principal debtors. But it is familiar doctrine that a partner cannot sue his co-partner for their respective shares of money paid by him to a- creditor. For there must be an account of all the partnership affairs, in order to bring into the inquiry what each has paid. (Story on Part., § 221.)

It is not an answer to these views to say that no proof exists (as the case now stands) that any other stockholder has paid a creditor. The point is that the plaintiff and defendants, with other persons, have been held to be co-partners in regard to this class of debts. They are engaged in a common enterprise. Por this class of debts, arising therein, all are jointly and severally hable. The nature of the liability assumes that there may be many such debts. Some may have been paid by one stockholder, some by another. And all have been paid towards the common benefit.

All this presents a case very different from that of a single liability of several persons (either as principals or as sureties), arising out of no community of property or of interest; like the case cited by Lord Kenyon, in Child v. Morley (8 T. R., 614).

The judgment should be affirmed, with costs.

Present — LeaeNed, P. J., Booxes and BoaedhaN, JJ.

Judgment affirmed, with costs.


text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. CORNELIUS E. KENE v. FREDERIC P. OLCOTT, Comptroller of the State of New York.

      Olutp. 198 of 1876 — wnconsUtutionality of —Power of legislature to gra/nt exto'a, compensation to clei'les — Mileage.
    So much of chapter 198 of 1876 as provides that the clerks of the committees of the senate and assembly shall he entitled to receive the pw diem allowance prescribed by chapter 112 of 1875, from the first day of the session to the day on which they were appointed, is unconstitutional.
    So much of the said act as provides that they shall receive the same mileage as allowed to members of the legislature is constitutional and valid,

      This is a case submitted under section 372 of tbe Code of Procedure.
    The relator was appointed clerk of tbe judiciary committee of tbe senate on January 14, 1876, and continued to act as such to tbe end of that session. Tbe session began on tbe 4th January, 1876. He has been paid at tbe rate of seven dollars per day for every day be was clerk, and now claims to be entitled to pay also for tbe eleven days of tbe session before bis appointment, and also mileage under chapter 193 of 1876.
    Chapter 112, Laws of 1875, is entitled “An act to amend an act prescribing tbe officers and employes that may be elected or employed by tbe senate and assembly,” etc.
    Section 3 of that act contains the following :
    “ § 3. Tbe following compensation shall be paid for tbe annual session of tbe legislature, commencing with tbe current session: * * * To tbe clerks of tbe committees of ways and means and judiciary, of tbe assembly, and tbe finance and judiciary of tbe senate, seven dollars per day, each; * * * and no extra allowance shall be made to tbe officers and employes above named on any pretense whatever. * * * All appointments made under this act shall be entered on tbe journal of tbe bouse wherein they are so made; such entry shall specify tbe date of tbe appointment, and tbe length of time tbe same is to be continued.”
    On tbe 1st of May, 1876, and more than three months after bis appointment, chapter 193, Laws of 1876, was passed, which contained tbe following (p. 185):
    “ For tbe clerks and messengers of tbe several committees of tbe senate and assembly of eighteen hundred and seventy-six, * * * to pay them their usual %>er diem allowance, from tbe first day of tbe session until tbe first day for which tbe comptroller has already allowed pay to them; * * * and to tbe clerks of said committees, to each of them, tbe same mileage as allowed to members of tbe legislature, tbe sum of five thousand dollars, or so much thereof as may be necessary.”
    'Section 24 of article 3 of tbe Constitution is as follows :
    “ Tbe legislature shall not, nor shall tbe common council of any city, nor any board of supervisors, grant any extra compensation to any public officer, servant, agent or contractor,”

      The respondent claims that the act of 1876 was unconstitutional, in so far as it attempted to grant a per diem, allowance before the appointment of the relator, and also in so far as it granted mileage.

      Ra/nd, Hale <& Swa/rtz, for the relator.

      E. W. Paige, deputy attorney-general, for the respondent.
   Learned, P. J.:

I think that the relator is entitled to his mileage; but that he is not entitled to a per diem allowance for the time before he was appointed. Chapter 112, Laws 1875, fixed his compensation at seven dollars per day, and forbade any extra allowance under any pretense whatever The Constitution forbids this also.

The Laws of 1876, chapter 193, ought not, therefore, to be construed as intended to give an extra compensation beyond the per diem allowance allowed by chapter 112 of Laws of 1875. If the legislature could thus give an extra compensation, under the name of a per diem allowance for ten days prior to the time when the relator was a clerk, they might give such per diem allowance for ten years before his appointment. "Where one is compensated b.y the day, this compensation is measured by the number of days during which he is in the employment for which he is paid. Any thing beyond is a gratuity. Could the legislature give a public officer, for instance the governor, his salary for two years prior to the time when his office commenced ?

I think the relator should have judgment for his mileage only.

Present — Learned, P. «L, Bockes and Boardman, JJ.

Judgment ordered for the relator for mileage only.


author: LearNed, P. J.:

text:
    EDWARD McCAFFREY, Plaintiff, v. THE CITY OF ALBANY, Defendant.

      Municipal corporation — constructing sewer on private lands — duty of city as to repair.

    Tlie city of Albany entered upon a number of contiguous lots, by consent of tbe owners thereof, and constructed a box drain, which was used by the owners and occupants of said lots as a public sewer, and subsequently the city repaired the said drain. Held, that these facts imposed no liability upon the city to keep the said drain in repair, or remove obstructions therefrom, as it was laid upon private property, and the city had no right to enter upon the lots without the consent of the owners
    Motion for a new trial on exceptions ordered to be beard in tbe first instance at tbe General Term, after a Terdict in favor of tbe plaintiff.
    Tbis action was brought to recover damages sustained by tbe plaintiff, occasioned by tbe discharge upon bis lot, from drains, of large quantities of water, dirt and filth. Tbe plaintiff’s lot was situated in tbe city of Albany, on Yan "Woert street, which runs along tbe bottom of a ravine towards tbe Hudson river. At some distance up tbe ravine, a sewer in Lark street discharged its contents from tbe side of tbe ravine, and it was claimed by tbe plaintiff that tbe place of discharge was negligently chosen, and that tbe water coming from tbe sewer ran upon plaintiff’s lot and injured it. It was also claimed that tbe plaintiff bad been injured by tbe omission of tbe city to repair a drain which ran through bis lot. It appeared that, prior to 1863, a box drain bad been laid, partly by tbe city and partly by private owners, from tbe east bounds of tbe city to Yan Woert street; that about that time tbe city, at tbe request, and by tbe consent, of tbe owners of a number of tbe lots on that street,constructed a drain across tbe street, and up tbe same, upon tbe private property of such owners, to what was known as Shepard’s lake, tbe drain being wholly upon private property, except where it crossed tbe street. It was also claimed that tbe city bad, subsequently, at tbe request, and by tbe consent of certain of tbe owners, entered upon their lots and repaired tbe same. It was insisted by tbe city, in tbis action, that, as tbe drain was situated upon private property, it was not bound to repair tbe same.

      Pa/rlcer da Countryman, for tbe plaintiff.
    'Whenever municipal corporations have assumed the control and management of drains constructed over the lands' of private persons, or built by individuals in the public streets, they have been held to the same measure of responsibility as in cases arising from the use of ordinary drains.

      (Wendell v. Mayor of Troy, 4 Abb. Ct. of App. Dec., 563 ; Mims v. Mayor of Troy, 59 N. Y., 500; done v. Qity of JTa/rtford, 28 Conn., 364.) Having constructed the “ creek drain,” with the consent of the persons owning the land, and assumed the control of it, the city was bound to keep it in proper repair and free from obstructions, and for any negligence in these respects, resulting in damages, the corporation is liable. (Barton v. City of Syracuse, 37 Barb., 293; S. C., 36 N. Y., 54; Rochester White Lead Oo. v. Qity of. Rochester, 3 id., 463.) Notice was repeatedly given to the city of the condition of the drain, although none was necessary. (Ba/rton v. Qity of Syracuse, supra ; McCarthy v. Qity of Syracuse, 46 N. Y., 194.) If there were no other provisions, this power over the creek drain would be derived from the duty imposed on the city to preserve the public health and to prevent and abate nuisances. (37 Barb., 293, 297; 36 N. Y., 55; Wood on Nuisances, § 741, and cases there cited.)

      Abraham Lansing, for the defendant.
    A drain built on land in which private owners retain all their rights of property, belongs to the private owners, and is subject to their control. No statute, custom or rule of law applicable to the city of Albany authorized or authorizes it to construct or maintain such a drain at the expense of its citizens, (The People v. Harmes, 49 N. Y., 591, 593; 1 Dillon on Munic. Corp, 89.)
   LearNed, P. J.:

By the charge of the learned justice the plaintiff might recover on either of two grounds: First, for negligence in terminating the Lark street drain where it was terminated; second, negligence as to keeping the (so called) Yan Woert street drain in repair.

We see no reason to question the first of these grounds. (Byrnes v. Cohoes, 12 S. C. N. Y., 602.)

The second is more doubtful. This Yan Woert street sewer, or drain, was not bnilt witbin tbe line of tbe street, except where it crossed tbe street from tbe north to tbe south side. It was bnilt on tbe land of private persons. Parts of it were bnilt by tbe owners of tbe property. Subsequently tbe city, with tbe consent of tbe owners, extended this drain on private property, through tbe plaintiff’s lot and through lots higher up, to what is called Shepards’ lot.

' This drain appears to have been used by tbe owners of tbe lots through which it ran. They toot off tbe covers of tbe box drain and erected privies directly over it. .

In regard to this drain, the court charged that if it was built by the city with the consent of the persons over whose land it passed, and the city had occupied it and controlled it as a city sewer, then the city was bound to exercise the same care over it as over the other sewers of the city. And if they were bound to keep it in repair, and were negligent, then the question would be the question of damages.

Now it may be trae that if the city, with the consent of the owners, constructed this drain, a box drain, and constructed it negligently, and thereby caused injury to the plaintiff, they might be liable. But can the fact that the city constructed and even repaired this drain with the consent of the owners make the city hable to keep it in repair ? So that for mere negligence in regard to repairs the city could be hable. What right would the city have to go on the premises of private persons to repair this drain ? Unless the city had the right to enter on the premises where the drain lay (that is, the premises of a large number of private owners, as appears from the map), how can they be hable for a neglect to repair. It is not to be held that the city was bound to do an act which they could do only by the consent of many persons.

In the ease of Nims v. Troy (59 N. Y., 500), an affirmative act had been done under the authority of the city by one Teeson, which directly obstructed the drain. It does not appear that this act was done on private property, or that it would have been necessary to go upon private property to remove the obstruction thus caused.

The case In re Ingraham (64 N. Y., 310) does not seem to apply here. The question there was as to the validity of an assessment. The sewer was laid within the line of the street. Even if the city had not acquired title to the street, yet, if the sewer had been laid by consent of tbe parties, it was held that Reassessment was not invalid.

But in this present ease, all that appears is that the city had built this box drain and had repaired it. These facts do not, of themselves, impose a duty on the city to keep it in repair where, being on private property, it is private property itself.

As the case was submitted to the jury upon both of these grounds of liability above stated, there must be a new trial, costs to abide the event.

Present — Learned, P. L, Bookes and Boardman, LJ.

New trial granted, costs to abide event.


text:
    SARAH M. DRAPER, Respondent, v. CLARISSA DRAPER, Impleaded with SOPHRONIA FORD and others, Appellant.

      Dower — action for — wlwn complaint sufficient.

    In an action of ejectment for dower, the plaintiff alleged that one Draper was at the time of his death, and for many years prior thereto had been her husband; that he died May 81, 1874; that at the time of his decease he was, and for many years had been, seized in fee simple of the premises described in the complaint; that she was entitled to an undivided one-third thereof for life, as her reasonable dower; and that the defendant was in the actual possession of the land, and wrongfully withheld the same from her. Held, that the complaint set forth a good cause of action, and that a demurrer thereto was properly overruled.
    Appeal from an order made at a Special Term overruling a demurrer, interposed to tbe complaint on tbe ground that it failed to state facts sufficient to constitute a cause of action.

      Waters & Knox, for tbe appellant.

      King <& Montgomery, for tbe respondent.
   Bookes, J.:

This is an appeal from an order of tbe Special Term overruling a demurrer to tbe complaint. Tbe action is ejectment for dower.

The plaintiff avers (1) that Thomas W. Draper was her husband at the time of his decease, and for many years next prior thereto, and that he died May 31, 1874; (2) that at the time of his decease, and for many years prior thereto, he was seized in fee simple and possessed of the lands and premises described in the complaint; (3) that she is entitled to one undivided third part of such premises for her life as her reasonable dower ; and (4) that the defendant Clarissa Draper is in the actual possession of the premises and wrongfully withholds from her the possession of said third part claimed as her dower.

There is another averment, to wit, that the other defendants named claim an estate in fee in the premises as heirs-at-law of said Thomas, deceased. But this averment is of no importance on this demurrer, which is interposed by Clarissa alone.

The question is simply whether facts are averred sufficient to constitute a cause of action against Clarissa, who alone demurs.

I am at a loss to see how or in what respect the complaint is defective as a complaint in ejectment for dower. If the facts averred be admitted or proved the plaintiff’s right of recovery seems well established. She avers that Thomas W. Draper was her husband at the time of his death, and had been her husband for many years next prior thereto; that he died in 1874; that at the time of his death and for many years prior thereto he was seized in fee simple and possessed of the premises in controversy; that the defendant, Clarissa, was in their actual occupation, and wrongfully withheld from her the possession of her dower therein. These facts, if they exist, give the plaintiff an undoubted cause of action. The right to maintain ejectment for dower is given by statute, and the action must be against the actual occupant (Ellicott v. Mosier, 7 N. Y., 201), and there must have been seizin in the husband during coverture. (Poor v. Horton, 15 Barb., 485, 486.) About all this there can be, of course, no dispute. But it is said that the plaintiff should have averred a lawful marriage between herself and the deceased. She averred that the deceased was her husband, which could only be proved by showing a lawful marriage; hence the averment made was an equivalent for that insisted on ; or rather was but another mode of averring the same fact; and so also as to the claim that there is no averment that the plaintiff is the widow of the deceased. This would necessarily follow from an admission or on proof of the facts averred. So, too, proof of the facts averred would show the plaintiff possessed, that is, seized in law of her dower in the premises. The complaint was, therefore, sufficient in this regard. (Ensign v. Sherman, 14 How., 439; The People v. The Mayor, 28 Barb., 240, on page 247; Walter v. Lockwood, 23 Barb, 228; Sanders v. Leavy, 16 How. 308.) And, indeed, it may be said of every objection- that can be urged against the sufficiency of the complaint that if the facts averred be admitted or proved, a clear right of action in the plaintiff would be established. Nor was it necessary to aver that the husband died intestate; the presumption is in favor of intestacy; and any matter that would bar dower was matter of defense to be interposed by answer.

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

Learned, P. J., and Boardman, J., concurred.

Order affirmed, with ten dollars costs, printing and disbursements.