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    George H. Wright, App’lt, v. William A. Carman, Impl’d, Resp’t.

      (City Court of New York, General Term,

      Filed July 1, 1892.)

    1. Partnership—Assumption op liabilities by incoming partner—Evidence.
    In an action against a firm for a liability of a preceding firm, a newspaper advertisement of dissolution of the former firm and the assumption of its debts by the new one, inserted by the incoming partner, is admissible on the question of his liability for such indebtedness, and its exclusion is error.
    ■2. Same—Consideration.
    The transfer to the incoming partner of the retiring partner’s interest and his being permitted to enter into partnership with the other partner, and receipt of assets of the old firm, is a sufficient consideration for the agreement to assume the debts of the old firm.
    3. Same—Statute of frauds.
    Such agreement is not within the statute of frauds, as it is not a promise to pay the debt of others on their default, but an original agreement based on a new, distinct and present consideration.
    Appeal from a judgment entered in above action on the 14th day of April, 1892, dismissing the complaint herein as to the defendant, William A. Carman.

      James R. Marvin, for app’lt; Smith Williamson, for resp’t.
   McGown, J.

—This action was brought to recover the sum of $1,403, and interest, alleged to be due to plaintiff’s assignor, Eugene Bing, Jr., as set forth in the complaint, which, briefly stated, alleges:

That about February 26, 1891, defendant Halsey and Eugene Bing, Jr., were partners under the name of Geo. W. Halsey & Co.

That on said day defendant Broadhead purchased from Bing bis interest in the property of the firm for $2,500, but instead of paying the same in money it was agreed between Halsey, Broad-head and Bing that the $2,500 should be paid to Bing; $1,097 thereof by the transfer to Bing of notes of Geo. Bahr then held by the firm of Geo. W. Halsey & Co., endorsed by the new firm, to be composed of Halsey and Broadhead; and the remaining $1,403 should be paid by the new firm on February 26,1892, and that Broadhead should pay the new firm $2,500 cash, instead of paying it to Bing.

'Ihat thereupon Bing transferred to said Broadhead all his interest in the property of Geo. W. Halsey & Co.

That Halsey and Broadhead then became partners under the name of Halsey & Co., which firm endorsed and delivered said notes to Bing, and that they were paid, and that Halsey & Co. agreed to pay Bing the remaining $1,403.

That about July 1, 1891, Broadhead transferred his interest in said firm of Halsey & Co. to the defendant Carman for $2,500, and that Carman agreed with Broadhead and Halsey to go into partnership with Halsey, under the name of Halsey & Carman, and that the firm of Halsey & Carman should assume and pay all the debts and liabilities of Halsey, including said sum of $1,403.

That thereupon Halsey & Carman became partners under the name of Halsey & Carman, and that said last named firm agreed with Broadhead and Bing to assume and pay all the debts and liabilities of Halsey & Co., including said sum of $1,403.

The claim was assigned to the plaintiff, and he demands judgment against the defendant Carman for the amount thereof and interest

The defendant Carman in his answer denies all the allegations in the complaint, except as to the formation of the several partnerships as alleged.

At the close of plaintiff’s evidence, the defendant’s attorney moved ‘‘ to dismiss the complaint on the ground that the plaintiff has not shown any cause of action, that the • case is within the statute of frauds, and the agreement, if any, should have been in writing.”

Which motion was granted by the trial justice, and to which decision plaintiff’s attorney excepted.

Upon the trial the plaintiff introduced in evidence a bill of sale from Ring to Broadhead (Plff’s Ex. B.), dated February 26, 1891, transferring all his right, title and interest, in and to the business and accounts, stocks, etc., belonging to the said firm of Geo. W. Halsey & Co., in consideration of the sum of $2,500. Three notes aggregating $1,097, with interest, * * * and the balance of $l,lfi3, with interest payable in one year, * * *• to be paid by the new firm of Halsey & Co., of which said Geo.. E. Halsey and said Henry Broadhead are members.

Halsey consented to above bill of sale on February 2, 1891, and testified, that the $1,403 was a debt that was due from me and my firm before Mr. Carman came in it,” and also testified that “ subsequently Mr. Broadhead retired from the firm. He sold his interest to Mr. Carman.”

On July 13, 1891, Broadhead, in consideration of $2,500, sold and conveyed all his right, title and interest etc., business and account of, in and to the firm of Halsey & Co. (Pl’ffs Ex. C.) to defendant Carman, and on November 12,1891, Halsey entered into co-partnership with Carman, under the name of Halsey & Carman, in the same business. (Pl’ff’s Ex. No. 1.)

Henry Broadhead, one of the defendants, sworn on behalf of the plaintiff, testified as follows:'

Q. What was the agreement between you and Mr. Carman relative to the payment of the debts of Halsey & Co. by Carman or Halsey & Carman ? A. Mr. Carman came to see me several times * * * and when we finally came to a decision we went to the office of Mr. Goeler, and Mr. Goeler drew the papers and Mr. Carman made a statement of the liabilities of the firm, and the items, the assets of the firm and the liabilities of the firm, and I took from several bills entered in the books, and those that were not entered, an account of the liabilities of the firm, which amount to about $9,000, and in that statement of $9,000 was included the $1,400 which the firm owed Mr. Ring.

“ Q. What was the agreement between you and Mr. Carman in regard to his liability, or the liability of the firm to be formed by him and Halsey, to pay this claim of Ring’s ? A. Mr. Carman said he would accept all the liabilities of the firm, and Mr. Car-man informed me that it had been advertised that the firm was changed from Halsey to Carman, and they accepted all the liabilities of the firm, and he understood the $1,400 was a liability of the firm, and when it became due he offered notes for it.

Q. What was the agreement between you and Mr. Carman in reference to the payment of the debts of Halsey & Broadhead ? A. We .were to pay the debts.

“ Q. Who was to pay the debts ? A. Halsey & Carman, the new firm which was to be organized, and they then went into copartnership together, and they paid the debts of the firm of Halsey & Broadhead.”

Ho writing whatever was produced by the plaintiff, or admitted in evidence, signed by the defendant Carman, or by the firm of Halsey & Carman, assuming to pay said $1,403 to Eugene Ring, plaintiff’s assignor.

The witness Halsey was asked: “Q. Was there any notice published in any newspapers of the dissolution of Halsey & Co.; that is, of yourself and Broadhead, and the assumption of their debts by the new firm of Halsey & Carman ?

“ Objected to as incompteent; objection sustained; exception.

“ Q. Who put it in the paper? A. Mr. Carman put it in the paper.

“Q. Was that the printed paper which it was published in (handing witness paper) ?

“ Objected to as incompetent; objection sustained; plaintiff excepted.

“ Q. I hand you the Daily Advocate of Thursday morning, July 30, 1891; was that a newspaper published in the Twenty-third ward? A. Yes, sir.

“ Q. And in that paper is a notice signed by Halsey & Carman. Who put that notice in the paper ? A. Mr. Carman,

“ Q. How do you know he did ? A. He told me he did.

“ Paper re-offered in evidence; objected to as incompetent; objection sustained; plaintiff excepted; paper marked Exhibit G. for identification.”

The notice referred to is as follows:

“ The firm of Halsey & Co. of 2523 Third avenue, composed of George Halsey and H. Broadhead, is this day dissolved. All liabilities will be liquidated by their successors.

“ Halsey & Carman.

“Mew York, July 28th, 1891.”

Halsey & Carman were the successors of the firm of Halsey & ' Co., and the sum of $1,403 claimed herein was a liability of the firm of Halsey & Co.

The testimony offered and excluded was competent to show that Carman recognized his liability, and that he had assumed the payment of the debt, and its exclusion was error; and plaintiff’s attorney’s exceptions to the rulings of the trial justice were well taken.

The evidence shows that Carman agreed with Halsey before their partnership was formed to pay the debts of Halsey & Co.

The transfer of Broadhead’s interest to Carman, and his being permitted to form a copartnership with Halsey, and the receipt of the assets of the old firm of Halsey & Co., was a sufficient consideration to support the promise, and it was not necessary that this agreement should be put in writing. It was not within the statute of frauds. Carman’s agreement with both Broadhead and Halsey was not to pay the debts of Halsey & Co. on their default ; but it was an original agreement based upon a new, distinct and present consideration, passing to him from both Halsey and Broadhead. See Schindler v. Euell, 45 How. Prac., 33; Lawrence v. Fox, 20 N. Y., 268; Arnold v. Nichols, 64 id., 117; Barlow v. Myers, id., 41; Barker v. Bradley, 42 id., 316, 321.

It was error on the part of the trial justice in dismissing the complaint on the ground that plaintiff had not shown a good cause of action, and that the case is within the statute of frauds, and that the agreement should have been in writing.

Judgment reversed, and a new trial ordered, with costs to abide the event.

Van Wyck and Fitzsimons, JJ., concur.


source: Caselaw Access Project

author: Van Wyck, J.

license: Public Domain

text:
    Allen B. Pharo et al., Resp’ts, v. Alfred N. Beadleston et al., App’lts.

      (City Court of New York, General Term,

      Filed July 1, 1892.)

    Contract—Breach —Evidence.
    In an action for breach of contract of sale by reason of a refusal by defendants to take certain thermometers with their advertisement upon them, where the defense is that plaintiffs had falsely represented that no other persons in the brewing business in a certain district had or would be furnished with thermometers for advertising purposes, and defendants testify that they entered into the contract because they believed this to be novel method of advertising and that they had never seen thermometers used for that purpose, evidence on the part of plaintiffs to show that thermometers were not a novel method of advertising, but for years had been made an advertising medium, is relevant and admissible.
    Appeal by defendants from judgment entered upon verdict, and from order denying new trial.

      Edward S. Clinch, for resp’ts; Guggenheimer & Untermyer, for app’lts.
   Van Wyck, J.

—This action is brought to recover the agreed price for 2,000 thermometers with defendants’ advertisement upon the same. There is no dispute as to amount, or that the contract was made, but defendants contend that plaintiffs represented that no other persons in the brewing business in New York city, Newark, Jersey City or Hoboken had been furnished by plaintiff with thermometers for advertising purposes, and that these representations were falsely made to induce defendants to enter into the contract, which they did upon the faith of the same. The plaintiff took the stand, offered the contract in evidence and proved compliance with the terms thereof and upon cross-examination testified that before this order was taken for these thermometers he had sold thermometers of this kind to other brewers in New York city, including the Empire State Brewing Co., about February 3, 1890, and the defendants then offered and had marked in evidence, the invoice of such sale (defendants’ Ex. 1), and plaintiff continuing under cross-examination, testified that he had sold these kind of thermometers to the Long Island Brewery Co., twice in July, 1890, and once in April, 1891, and defendants had ■ the invoices of these three sales marked in evidence (Defendants’ Exhibits 2, 3 and 4), and plaintiff, still under cross, continued r We had contracts for these kind of thermometers as an advertising medium, before procuring the contract in question, with the Empire State Brewing Co., and the Long Island Brewing Co. and Ernest Ochs; we had, also, in Brooklyn, the brewers Danenberg & Coles.

The defendant Beadleston was then called, and among other things-testified that he attended to this line of business, advertising and meeting people of that sort that come to the office; “in 1889 and 1890 our firm were extensive advertisers, and in advertising we sought to adopt, novel methods and get something original,” and that he asked Mr. Tully, their advertising agent, his opinion about the idea of adopting that mode of advertising, and that he said they would be good if the exclusive use of them could be had; otherwise not. He further testified that he thought there was an advantage in having the exclusive use of these thermometers as an advertising medium. The defendants’ witness, Pottberg, on direct, testified that he said át the time he thought it was a good thing to advertise, if no one else had it, and Tully, another of defendants’ witnesses, upon direct, testified that he had dealt largely with defendants for many years; that they have always been extensive advertisers ; that he bad charge of their advertising, and that they had advertised always in a novel way, and upon cross, he.said he had never seen the thermometer’s used for advertising purposes, except the one which was shown at the time the order was solicited. Mr. Woerz, the other defendant, on direct, testified: We thought the thermometer was a nice advertisement, if we had it alone; that he never saw any. thermometer as an advertisement before and thought it was new, and then the -defendants rested. Then on behalf of plaintiff evidence was given going to show that thermometers were not a novel method or medium of advertising, but that for years thermometers had been made as an advertising medium. To this, defendants objected and excepted, but the trial judge admitted the same, and in view of the evidence already quoted, it does seem that the same thereby became relevant and was properly admitted. It is; against this ruling only that défendants make serious objection. The plaintiff and his witness denied that the alleged representations had been made, and it seems they convinced the jury, for the verdict was for plaintiff for the full amount claimed, and is not against the weight of evidence. The judgment and order appealed from are affirmed, with costs.

McGown, J., concurs.


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    Frank E. Blackwell, Resp’t, v. John G. Bainbridge et al., App’lts.

      (City Court of New York, General Term,

      Filed July 1, 1892.)

    Principal ato surety—-Release—Extension of time.
    In an action brought by defendants’ principal in the United States circuit court against plaintifi’s assignor, the latter recovered upon a counterclaim, and upon motion for a new trial and to set aside the report the undertaking in suit was given, upon which defendants were sureties. Extensions of time to serve a bill of exceptions were granted, but by mistake no stay was included in the orders, and judgment was entered. Subsequently, it being claimed that the right to move for a new trial was lost, and a dispute arising thereon, an agreement was entered into by which the judgment was to be satisfied by payment of a smaller sum, and releases were to be executed by both parties to be placed in escrow until the agreement was complied with and the payments made. Held, that such agreement was founded on a good consideration, and operated to extend the time of payment of the principal debtor and deprive defendants of their right of subrogation, and that they were discharged thereby.
    Appeal by defendants from judgment entered on verdict directed for plaintiff.

      William C. Timm, for resp’t; D. Leventritt, and J. W. Monks, for app’lts.
   Van Wyck, J.

—The plaintiff claims by assignment from the firm composed of Willy Wallach and Edgar S. Blackwell, which, will hereafter be called Wallach & Co., and the action is against defendants as sureties upon an undertaking for costs of $1,052.75 as taxed, the condition being that if a certain report of the referee is vacated, set aside, or the new trial is granted, then the undertaking is to be void. This report was made by a referee to hear and determine an action in the United States circuit court, brought by one Máurice Lilienthal against the firm of Wallach & Co., to recover about $12,000, and in which Wallach & Co. set up a counterclaim for about $14,000, and the referee dismissed Lilienthal’s claim, and found against him in favor of Wallach &Co’s right to recover their counterclaim for $14,000. Immediately, Lilienthal moved for a new trial and to set aside this report, and in order to pursue this motion, which was the only way he could review (as we do an appeal), he was compelled to give security for the costs which bad been taxed against him at $1,052.75, and thus the undertaking executed by the defendants and sued upon in this action was given, and it recited that the costs had been so taxed and that Lilienthal intended to move for new trial and undertook that Lilienthal would pay the costs, and provided that the same should become void if the new trial was granted or the report vacated. It must be remembered that if Lilienthal should have succeeded in obtaining the new trial that he might eventually recover against Wallach & Co. a judgment -for about $12,000. When the order was made directing the taxing of the costs and giving security for same, Wallach & Co. were enjoined from entering judgment for six weeks from August 3, 1888, and Lilienthal was given the same time within which to serve his bill of exceptions and to move for new trial. Thereafter Lilienthal obtained another extension from the court to serve his bill of exceptions and to move for new trial, but his counsel, mistaken in his practice, neglected to secure from the court a continuance of the stay as against entry of judgment, and his adversary, ever alert, entered judgment against Lilienthal for $14,112.72, which of course included the bill of costs as taxed and secured as aforesaid. ; This judgment was entered September 21, 1888. It is sufficient to say that this judgment was never vacated, although Lilienthal secured numerous extensions to serve-Ms bill of exceptions and to move for new trial, and it would seem that he never has absolutely lost his right to serve his bill of exceptions and to move for a new trial, for it appears that Lilienthal moved for leave to serve his bill of exceptions nunc pro tune, which motion often appeared on motion calendar and was adjourned from time to time by the court, and' when last called on the calendar, counsel for Wallach & Co. moved to have same dismissed, which was denied and'the same was marked off with right to have it restored and heard by the court During all of this time Lilienthal had an order of court which extended his time to serve his bill of exceptions and to move for new trial “ until after the entry and service .of an order upon the determination of his-said motion for leave to serve his bill of exceptions nunc pro tune,” which motion has never been heard or determined, but was simply marked off calendar as shown above.

Now if Lilienthal has never lost his right to review the findings of the referee, why, of course, the defendants would not be-liable upon the undertaking sued upon and which was given to-en able him to so review the judgment so obtained against him by Wallach & Co., and which, if finally reversed, would forever wipe-out the bill of costs to secure which these defendants entered into-the undertaking sued upon. The counsel for plaintiff here contends, however, that Lilienthal has forever lost that right to review the judgment into which is merged such bill ,of costs, by reason of certain technical rules of practice which prevail in the United States courts, and the decisions upon .the same. But be that as it may, it is certain that on January 29, 1890, it was in dispute and controversy between Wallach & Co., and Lilienthal, whether or not Lilienthal had, by the mistaken practice of his former counsel, lost his right to review, his chance to reverse and the legal possibility to recover, upon a new trial, a judgment against Wallach & Co. for his original claim of $12,000. This dispute and controversy as to his rights would alone be sufficient, consideration to support the agreement entered into between him and Wallach & Co. on that day, and which provided for an exchange of general releases between him and Wallach & Co. And if this agreement is supported by a valuable consideration no one can doubt after reading it that these defendants, the sureties, were-released thereby, first because it deprived Wallach) & Co., the principal creditors, forever from enforcing the judgment against Lilienthal, the principal debtor, and into which had been merged the-costs to secure which these defendants, the sureties, had obligated themselves. And even if Wallach & Co.’s right to enforce the judgment had not been absolutely lost forever by this agreement, still the fact that it suspended their right of such enforcement first, to February 6, 1890, then to the 17th and finally to March 13r 1890, would release these defendants, the sureties. This agreement was as follows:

“ It is agreed by and between Willy Wallach and Edgar S. Blackwell, composing the firm of Willy Wallach, and Maurice Lilienthal, that all claims and demands now existing between them, including all sums now due upon the judgment recovered in the circuit court of the United States for the southern district of New York by said Willy Wallach and Edgar S. Blackwell against said Maurice Lilienthal, and entered in the clerk’s' office of said court the 21st day of September, 1888, for $14,112, be settled and adjusted as follows:

“ The said Maurice Lilienthal shall pay Frank E. Blackwell, as attorney for said Wallach and Blackwell, the sum of $5,000, of which $1,300 shall be paid on or before February 6, 1890, in cash, and a part or the whole of the balance may, at the election of said Lilienthal, be paid by allowing the taking of such proceedings in said action, or any actions relating thereto, or by the execution of such instruments as will be necessary to enable said Blackwell and Wallach to collect as speedily as possible all moneys due from. Messrs. Schall & Co., and the representatives of Messrs. George & Co., of New York, and Messrs. Hooper, Lewis & Co., of Boston, to said Lilienthal. And in case there is any balance of said $5,000 remaining due after such payment and collection, or ineffectual proceedings for that purpose, the same shall be paid to the said Frank E. Blackwell, as attorney, in cash forthwith, but should there be any sum in excess of said $5,000, the same shall be paid to said Lilienthal.

“ The said Maurice Lilienthal shall forthwith execute and deliver a general release to said firm of Willy Wallach and to said Wallach and Blackwell severally, which said releases shall be held by said firm in escrow only until this agreement be in all respects fulfilled; and the said Willy Wallach and Edgar S. Blackwell shall, upon receipt of said sum of $1,300 as aforesaid, and said general release or releases, execute and deliver to Messrs. Coudert Brothers, his attorneys, a general release to said Maurice Lilienthal, and a satisfaction of the judgment so recovered by them as aforesaid, to be held by said Coudert Brothers in escrow only until this agreement be in all respects fulfilled.

“All the general releases herein provided for shall be for the consideration of one dollar.

“ Dated January 29, 1890.

“ Willy Wallach and Edgar S. Blackwell,

“By Frank E. Blackwell,

Their Attorney.”

“ Maurice Lilienthal having this day paid to Frank E. Blackwell, attorney, the sum of $400, the time limited by the foregoing agreement for the payment of the balance of the sum of $1,300 therein mentioned is hereby extended to and including the 17th day of February, 1890.

“ Dated Feh'uary 6, 1890.

“Willy Wallach and Edgar S. Blackwell,

“ By Frank E. Blackwell,

Their Attorney.”

“ The within agreement is hereby extended to and' including March 13, 1890.

“ Dated March 12, 1890.

“Willy Wallach and Edgar S. Blackwell,

“ By Frank E. Blackwell,

Their Attorney.”

This agreement is amply supported by valuable considerations. First, the dispute and controversy as to whether or not Lilienthal still had the right to review, the chance to reverse and the legal possibility to recover, upon a new trial, judgment against Wallach & Co. for $12,000, his original claim ; the agreement to exchange mutual releases by and between Lilienthal and Wallach & Co., and the individual members of that firm the right to elect and the election by Lilienthal (by actual transfer) to pay the balance of the $5,000, remaining after the payment of $1,300 in cash, “ by the execution of such instruments as will be necessary to enable Wallach & Co. to collect all moneys due ” Lilienthal from the three firms mentioned in the agreement, including two bills of exchange accepted by one of such firms, instead of “by allowing the taking of such proceedings in said action (the one in which the judgment was recovered against Lilienthal) or any action relating thereto, as will be necessary to enable Wallach & Co. to collect all moneys ” due to Lilienthal from said three firms. This agreement having specified that proceedings in the judgment action could only be taken to enable Wallach & Co. to collect these moneys due from the three firms, therefore the action and judgment could not be kept alive or enforced for any other purpose.

Now as to the escroto of the releases, the meaning and intent of the agreement is that the releases to Wallach & Co. and the individual members of that firm were to be so held until they had accounted for the moneys collected from those three firms, by them, and as they have not collected as much as the balance of $3,700 which was to be paid out of these moneys, why, they now hold them under absolute delivery unless they are liable for some neglect in not collecting more than the $1,-952.40, which they admit, and which leaves about $1,700 still due from Lilienthal to Wallach & Co. under the agreement and upon the payment of which, with interest, Lilienthal would be entitled to hold absolutely the release to him which is now held by his counsel in escrow. It only remains to briefly state the rules of law applicable to cases where the principal creditor by satisfying or extending the time of payment of the debt of the principal debtor thereby releases the surety from all liability therefor, in order to. show that the judgment in the case at bar entéred upon a verdict directed for the plaintiff must be reversed and judgment given for defendants, dismissing the complaint on the merits, with costs of action and of appeal. A creditor cannot bind himself by a simple agreement to accept a smaller sum in lieu of an ascertained debt of larger amount, such an agreement being nudum pacium. But if there be any benefit, or even legal possibility of benefit, to the creditor thrown in, that additional weight will turn the scale and render the consideration sufficient to support the agreement. Bull v. Bull, 43 Conn., 455, cited with fullest approval in Jaffray v. Davis, 124 N. Y., 172; 35 St. Rep., 106. In this latter case the defendants gave their promissory notes upon time for one-half of the debt they owed plaintiff, and also gave plaintiff a chattel mortgage on the stock, fixtures and other personal property of the defendants under an agreement with plaintiff to accept the same in full satisfaction and discharge of said indebtedness ; and it was held that plaintiff could recover no more than the one-half so agreed to be paid. In the case at bar, in addition to the other considerations, Lilienthal gave Wallach his claims against three firms, and also two bills of exchange accepted by a stranger to the transaction.

Of course, the satisfaction of a debt for which another is security releases the surety, and an agreement for an extension of such debt made without the consent of the surety, upon a valid consideration, which precludes the creditor meanwhile from enforcing the debt against' the principal, thereby changing the position of the surety, will release the surety. Lowman v. Yates, 37 N. Y., 604, and Powers v. Silberstein, 108 id., 169; 13 St. Rep., 125. The surety, upon the payment, is subrogated to the rights of the creditor, but only to his rights; and if the creditor has bound himself by any transaction with the principal debtor which prevents the surety, upon payment, from immediately prosecuting the principal debtor, the former is discharged. Any valid or binding agreement whereby the surety may be deprived of or delayed in the assertion of his equitable claim to pay the debt, and to become subrogated to the rights and remedies of the creditor, if made without the assent of the surety, will discharge him. 10 Paige, 11. When time is given to the principal debtor, though but for a single day, the surety is discharged. The surety when he pays the debt must have an immediate right of action against the principal, and that right cannot be postponed for any period, however short, by the creditor without discharging the surety. 7 Hill, 250, and Ducker v. Rapp, 67 N. Y., 464. By applying these principles to the transaction between Lilienthal and Wallach & Co., the conclusion is reached that these defendants, the sureties, were discharged and should have had judgment below. The original judgment against Lilienthal and in favor of Wallach & Co. was for $14,112.72, and Wallach & Co. having already been paid altogether upon the same $8,558, and had we not concluded to give judgment absolute for defendants, we should have ordered the judgment reduced by applying this payment pro rata on account of payment of the costs, as well as on account of the principal sum, both of which are thrown together in making up the whole judgment, as it was upon account of the whole that the payment of $8,588 was made. And such order could have been made under the familiar rule that when two debts have been blended and thrown together and a surety is liable for one of them and not the other, and a payment is made on account of the whole debt as so blended, then that such payment must be applied pro rata on account of both the secured and the unsecured parts of the whole debt.

The judgment appealed from is reversed and judgment is directed for defendants, dismissing the plaintiff’s complaint upon the merits, with costs of action and costs of appeal, and they are awarded an extra allowance of five per cent upon the amount claimed by plaintiff.

McGown and Fitzsimons, JJ., concur.


text:
    John E. Owen, Resp't, v. Owen Matthews et al., App’lts.

      (City Court of New York, General Term,

      Filed July 1, 1892,)

    1. Sale—Breach of contract—Damages.
    In an action for goods sold, the answer alleged that such goods were what is known as seconds; that under an agreement with the vendor defendants were to purchase all of that class of goods for a specified discount from the catalogue price of firsts; that the vendors were to maintain such price of firsts for one year; that they did not do so, but sold at reduced prices, whereby defendants were prevented from selling the goods purchased by them, to their damage. The only evidence to sustain this defense was that the vendor had sold three invoices of firsts of two kinds out o£ one hundred at a reduced price; neither of which kinds were shown to be among those remaining on defendants’ hands, and the declaration of a customer that he could get firsts at the price defendants asked for seconds. Held, that the evidence was not sufficiently definite to authorize a finding that such sales were the cause of defendants’ failure to sell their goods.
    3. Same.
    The measure of damages is to be determined by the facts testified to on the trial and not by those alleged in the pleadings.
    Appeal by defendants from judgment entered on verdict, and from order denying new trial.

      Wales F. Severance, for resp't; William J. Kelly, for app’lts.
   Van Wyck, J.

—The plaintiff by assignment from the Goodyear Yulcanite Go. alleges sale to defendants between June 11 and 27, 1891, of goods at agreed prices of $1,398.94, upon account of which payment of $986.68 has been made, and claims the balance of $412.26. The answer admits such payment and that the goods were so sold, but denies that the agreed price or value was as claimed, and alleges by way of counterclaim that on May 1, 1891, an agreement was made by them and the Goodyear Co. by which it was to sell, and they were to take all of the material manufactured by it for one year and known as “ seconds ” at agreed prices of twenty per cent less than its prices for “ firsts ” as fixed by published catalogue prices and the regular discounts allowed therefrom. These ‘“firsts ” are goods that are entirely perfect in every respect and the “ seconds ” are imperfect or have a blemish of some kind.

The answer further alleges that at the same time it was agreed between the parties that the Goodyear Co. should maintain, for one year, the prices of these “firsts,” as specified in its catalogue, less the said trade discounts, but that in violation 'of this agreement it sold “firsts,” between May 1 and June 30, 1891, at prices much lower than as agreed, as aforesaid, and that by reason thereof defendants were unable to sell and dispose of the “ seconds,” and hence were damaged thereby in the sum of $2,500.

Upon the trial plaintiff proved the sale, the payment and the balance of $412.26 as due, and then rested.

It was conceded that the prices to be paid by defendants for “ seconds ” were to be twenty per cent less than the net prices of the “firsts.” The defendants gave evidence to show that the agreement to maintain the prices of “ firsts ” for one year was made. The only evidence to show that the company had sold “ firsts ” for less than fixed prices was that it sold three invoices of “ firsts,” one May 7, of five gross of fine combs known as No. 315, at $4.50, equals $22.50; another, July 11, of thirty gross of fine combs known as No. 315, at $4.50, equals $135; and another June 8, of twelve gross of dressing combs known as No. 2374, at $8.35, equals $100.20; the aggregate of these three invoices being $257.70. Although denying that these goods were “firsts,” it was conceded by plaintiff that the net prices of goods as so numbered on the catalogue were $5 per gross for No. 315 and $12.20 for No. 2374. Now if these two kinds of goods were “ firsts ” and so sold, then as defendants were to pay twenty per cent less for “ seconds,” they could be .charged only $4.05 per gross for No. 315 “seconds,” and $6.68 per gross for No. 2374 “seconds.”

It was admitted in the case that there are one hundred different kinds of “ firsts ” catalogued and at different prices. The defendants testify that they bought from the company $3,600 worth of these rubber goods, altogether; but they have failed to prove clearly what portion of these goods so bought are of the two kinds known as No. 315 and 2374, which they should have done in order to allow the jury to ascertain how much they had been overcharged for these two kinds, for their proof, assuming its truth, is that they should have been charged $4.05 instead of $4.50 per gross for “seconds" of No. 315, and $6.68 instead of $10.50 for “ seconds ” of No. 2374.

It is true that one of the defendants in answer to a question as to whether they have the same kind of goods mentioned in this invoice (what invoice it is does not clearly appear) says:

“I think so. Here is one of twenty-four gross.” But it does not appear whether these twenty-four gross were of the No. 315 or the No. 2374 kind, and he continues testifying indefinitely as to goods at $64, $23.74 and $18 per gross, but as already stated they paid $4.50 for “ seconds of. No. 315, and $10.50 for “ seconds ” of No. 2374, and say that “ firsts ” of these numbers should have been sold by the company for $5 and $12.20 instead of $4.50 and $8.35 respectively, and he continues in answer to this question : “ Q. Are there any numbers in your invoices of the Goodyear Vulcanite Go., that is, of the number 2374. A. We have some of those numbers; four gross; that is all I have discovered. They cost me $10.50; they were in the other bills $8.35 ; that is, for the first quality. That is all I discover." This ' is all of the testimony from which must be ascertained what, if any, overcharge has been made or paid by defendants. The jury would be justified in finding that there had been an overcharge of $3.82 per gross of four gross of “ seconds” of Ho. 2374, equal to $15.28, and the jury might be justified in finding an overcharge of forty-five cents per gross on twenty-four gross of “ seconds ” of Ho. 315, equal to $10.80. The defendants may have had much information as to overcharges, but their proof was small in result. The defendants claimed that they had on hand about $2,400 worth of rubber goods which they were unable to sell by reason of the cut in prices of the “ firsts,” as already shown, by the company in violation of its agreement to maintain the same for one year. As to this, one of the defendants says that he bought, altogether, about $3,600 worth of rubber goods of- “ seconds;” that he knows their sale was interfered with by reason of this cutting of prices, because he tried to sell several numbers of those goods in June arid July, 1891, and the parties to whom he offered them said: “ I won’t buy 1 seconds ’ because I can buy 1 firsts ’ for the price you want for the 1 seconds,’ and I couldn’t make any sale of them; ” and the other defendant says that be has endeavored to sell the rubber goods which they bought of the Goodyear Co. and now have in' stock, but has not been able to do so for the reason that they had undertaken to sell the second quality for the same price the first quality had been selling for.

This is the evidence on this branch of the case, and no proof is made that any of the rubber goods which defendants had on hand and failed to sell were of the kinds known and catalogued asHos. 315 and 2374. Moreover, defendants say they then knew that the company had sold these two numbers in “ firsts ” for less than the fixed price, and that they had the right to'buy “seconds” for twenty per cent less than the net selling price of “ firsts ” as so fixed. If they had this right to buy at prices so diminished, it certainly carried the privilege to reduce their selling price of “ seconds ” by twenty per cent without in any way diminishing their profits so as to meet any cut on the prices of “firsts.” And when their alleged customer, to whom they offered to sell the goods, said that he could buy “firsts” for the price that they offered “ seconds,” if they had replied that they would then reduce their selling price by twenty per cent, it is reasonable to suppose that this offer would have been accepted. And moreover, whether such customer so said he could buy “ firsts ” at prices for what he was offered “ seconds ” is the merest hearsay evidence, and as he had the whole world as a buying market, so far as the evidence shows, how can his declaration, if made, even if true, have any legal bearing on the measure of damages as between the defendants and the Goodyear Co., for no proof is in the case that it had reduced the prices for “ firsts,” except, perhaps, as to three small invoices of two out óf 100 different kinds. And so it can be safely said that defendants have not made their proof sufficiently definite as regards their inability to sell “ seconds ” by reason of the reduction of “firsts” by the Goodyear Co.to enable either judge or jury to say that the.reason why they have not sold part of their “seconds ” which they bought from the Goodyear Co. is because that company sold these three invoices of those two kinds of “ firsts," assuming that it did, at prices lower than it had agreed to sell. It is said in appellants’ brief that the question is what was the rule of damages applicable to the facts as alleged in the pleadings in the case. This might be the question upon the hearing of a demurrer to such pleading, but at circuit the question is what is the rule of damages applicable to the facts as testified to upon the trial, having regard, however, as to whether the same are properly within the scope of the pleadings.

And applying this rule, nothing can be found in the record which would justify holding that defendants have any just cause of complaint against the verdict of a jury which holds with them in so far as recognizing the making and breach of the contract upon which their counterclaim was founded. And this verdict so determines, for the plaintiff proved his claim of $412.26, except, perhaps, as to the two items of $15.28 and $10.80, amounting to $26.08, which, taken from the full claim, leaves, $386.18 due plaintiff. Yet the verdict is only for $360.76, indicating that the jury concluded that the agreement was made and broken as contended for by defendants, and that some evidence appeared on the trial showing small damages to defendants by reason of the company’s breach of the contract. The verdict is not against the weight of evidence so far as the defendants are concerned.

The judgment and order appealed from are affirmed, with costs.

McGown, J., concurs.


author: Hatch, J.

text:
    Louisa M. Rauenstein, App’lt, v. The New York, Lackawanna & Western Railway Co., Resp’t.

      (Superior Court of Buffalo, General Term,

      Filed July 8, 1892.)

    Railroad—Unauthorized obstruction of street—Change op grade.
    Defendant constructed its road upon an embankment in one of the streets of Buffalo by permission of the common council, which required it to restore any street interfered with thereby to as good condition as it was before. In doing so, it erected an approach in front of plaintiff’s premises which virtually shut them off from the street. None of the provisions of the city charter in relation to change of grade were complied with. It having been decided that the action of the common council was not authority for the erection of defendant’s embankment, and that it was an illegal appropriation of the street, Held, that the approach in question being rendered necessary by the original structure, and erected under the same authority, was likewise unauthorized, and an illegal obstruction of this street; that there was no change of grade within the provisions of the charter, and no liability on the part of the city, and that defendant was liable for the damage to plaintiff’s property.

      (Ottenot v. N. Y., L. & W. R. R. Co., 28 St. Rep., 483; Conklin v. N. Y. O. & W. R. R. Co., 102 N. Y., 107; 1 St. Rep., 677, and Uline v. N. Y. C. & H. R. R. R. Co., 101 N.Y., 98, distinguished.)
    Appeal from a judgment entered upon a verdict directed by the court, and from an order denying plaintiff’s motion for a new trial made upon the minutes, of the court.

      George W. Cothran, for app’lt; John G. Milburn, for resp’t.
   Hatch, J.

—The plaintiff is the owner of a three story brick building situate upon the southeast side of Commercial street, in the city of Buffalo, which has been heretofore devoted to use as stores. The defendant has constructed, and now operates and maintains a railroad in Water street, which forms a junction with and crosses Commercial street immediately south of plaintiff’s premises. In order that defendant might cross Commercial slip, a part of the Brie canal system, at the grade established by the state engineer, it became necessary to construct, and it constructed, an embankment about six feet high on the southeasterly side of the junction of Commercial street, extending westerly therefrom about 800 feet upon a gradual descent until it reaches grade. This embankment is twenty-four feet wide, with a lateral support of perpendicular stone walls filled between, upon the surface of which is placed the rails of the track. In order that a crossing of this embankment might be effected, defendant constructed in Commercial street a raised roadway, commencing at grade 102 feet north of' the south end of plaintiff’s premises, at a distance of one foot from the curb line of the street; it rises sharply to a height of five feet and four inches above the original grade of the street opposite the south end of plaintiff’s building. This roadway is twenty feet wide, with perpendicular stone walls on each side filled between and pa”ved on the surface". By this structure plaintiff is placed' in this position: three of her stores and part of the fourth are virtually shut off from the street; there is left but one foot of street between the curb and the wall of the roadway, eight feet of sidewalk, with an outlet at the southerly end, consisting of stone steps and an iron rail leading to the top of defendant’s embapkment in Water street; she may not make use of the sidewalk to drive upon to her stores without subjecting herself to a fine for violating the city ordinances, or to fine or imprisonment, or both, by the statute law of the state. Penal Code, § 652.

Her stores .are practically useless, stand empty, and unless she obtains relief in this action it would seem that she is now without remedy. The case is hard and her rights precarious. The claim has been heretofore made, and is now insisted upon, that this structure in Commercial street is no part of defendant’s railroad or structure; that it was erected by virtue of the authority granted by the city, and as directed and approved of by it; that as the structure is not used for any railroad purpose, and as plaintiff’s property does not abut upon the railroad structure, or street in which it is, she is in no legal sense damaged, and cannot recover for such act. That the determination of the court of appeals upon the former appeal is res adjudícala upon every question presented by the present record. The authority to construct defendant’s roadway in Water street, and also to erect the structure in Commercial street, which furnishes the foundation of the present action, is found in the proceedings of the common council, and is set out in the record herein. This authority is the same as was invoked to resist a recovery of damages in the case of Reining v. This Defendant, 128 N. Y., 157; 40 St. Rep., 392, and it was there decided that as to the structure in Water street the action of the council was not authority for its erection ; that it was an illegal and exclusive appropriation of the street, rendering defendant liable to abutting owners who suffered damage on account thereof. While this decision does not necessarily determine that the present structure is an illegal structure, erected without authority, yet it has so far modified previously assumed facts and -expressed views with respect to the legality of both structures, and the rights and liabilities flowing therefrom, that we are led to the conclusion that the decision of the former appeal has not foreclosed a re-examination of this question.

It is said, in the report of this case on appeal, that there is no difference in principle and substantially none in the facts, between it and Ottenot v. N. Y., L. & W. R. Co., 28 St. Rep., 483. This, therefore, must be accepted as the rule, and while it is true that Ottenot had left to him a useful street, and the plaintiff had none, yet such difference does not change the principle to be applied.

It is urged that the Ottenot case is based upon the decision of Conklin v. N. Y., O. & W. R. R. Co., 102 N. Y., 107; 1 St. Rep., 677, which is true, and' it might be stated with equal truth that the learned judge who wrote therein reinforced his position by the case of Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y., 98, and additional kindred authorities. We are, therefore, to see if there be any distinction between those cases and the law as recently announced. When the Ottenot case was decided, it had not then been determined that defendant’s structure in Water street was illegal, and that case proceeds upon the assumption that it was, in all respects, a legal structure, for the statement opening the argument is, “ The railroad was built by lawful authority through Water street.”

In speaking of the Conklin case it says: “ In that case the railroad was constructed across a country highway, under the general railroad act of 1850. * * * The railroad company was authorized'to construct its road across the highway under an obligation to restore it to its former state, or to such state as not unnecessarily to have impaired its usefulness. Before entering upon the highway, it was required to have the xyritten consents of the highway commissioners. * * * Here the railroad was constructed in Water street, crossing Commercial street, under the same provision of the general railroad act, after obtaining the assent of the city as required by that act, and also by the city charter. * * * So the railroads in that case and in this were constructed under the same public authority.” Rot only was it assumed that the defendant was authorized to construct» the embankments, but it is asserted that “ it was bound to raise the embankment in Water street, and it was bound by the law and the city ordinances to raise the embankment in Commercial street.” This branch of the argument is concluded by the statement that: “ The defendant, having the authority of the statute and of city ordinances for what it has done, is not liable to the plaintiff unless it has violated some right of his inviolably protected by the constitution.”

Reference to the Conklin case shows that the crossing of the railroad was not the subject of complaint, but solely the change of grade of the street made necessary -by the railroad’s existence; the latter was a legal structure, authorized by law both in its entirety and detail of construction. If the railroad in that case had erected an illegal structure, and such illegal structure had necessitated a change of grade of the street to effect a crossing, then we would have the present case, but there is noticeably two different features; first, the railroad was a legal entirety; second, the abutting owner on the approach was left to enjoy “ full opportunity for light and air, and means of access.”

In the Uline case it was expressly assumed that the railroad was a lawful structure and the complaint therein did not challenge it. In all of the cases cited, and in all that have fallen-under my observation, where the right of recovery for consequential damages was denied, the injuries were the result of legal acts based upon undoubted authority. This case therefore is unlike, in this respect, any case which has preceded it. The effect of the decision in the Reining case, as before seen, is to declare this structure, so far as Water street property owners are concerned, illegal and unauthorized. Such being its character, as to them, it becomes a continuing nuisance. Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y., 107; Davis v. Mayor, 14 id., 524.

It also becomes a continuing nuisance as to all persons owning property upon Commercial street who are specially damaged by its existence, and such persons can maintain an action for damages and compel an abatement of the nuisance. Clarke v. Blackmar, 47 N. Y., 153; Crooke v. Anderson, 23 Hun, 266; Porth v. Manhattan R. Co., 33 St. Rep., 709; Flynn v. Taylor, 127 N. Y., 596; 40 St. Rep., 187; Callanan v. Gilman, 107 N. Y., 360; 12 St. Rep., 21.

If no structure had been erected in Commercial street, and plaintiff suffered damage by the obstruction of the street, it would seem that she would have a legal remedy for the wrong done against the defendant. How then is the situation changed, when the damage is the result of a structure made necessary by defendant’s illegal act ? In fact the two acts combined, as to plaintiff, render both streets useless, and when we search for authority authorizing the construction of the embankment complained of, we find it depends upon the grant made authorizing the construction in Water street. If this were an action to recover damages for, and to compel the removal of the obstruction of Commercial street by the Water street structure, it is not perceived how such action, upon the present facts, could be successfully resisted.

. It is, however, said that such is not this action; that it relates exclusively to the structure in front of plaintiff’s premises in Commercial street. And as to that defendant was obligated in the grant given by the city to restore this street to a condition of usefulness, and that it bears no relation to defendant’s railroad structure. The authority to construct the approach is found in the general grant and so far as material here is thus expressed.

Sixth. That in the construction of such road, such construction shall be so conducted as to interfere as little as possible with the public use of the streets crossed or occupied; and such com-pony shall restore any street interfered with to as good condition as the same was before such interference, as soon as possible, and subject to the approval of the city engineer.”

The condition imposed is similar to the duty enjoined upon defendant by the general law of the state, for by that law it is required to restore a highway crossed “ to its former state, or to such state as not unnecessarily to have impaired its usefulness.” This provision in the grant, therefore, gave to defendant no other or different privilege, and imposed no additional obligations, in this respect, than if no mention had been made of the subject in the grant. If the city had no authority to authorize the structure erected in Water street, I am not able to see how it has authority to authorize the construction of an approach made necessary by such illegal structure. To support such contention would lead us to the conclusion that an act resting upon no basis of authority in law, and inflicting damage upon certain property owners, may, nevertheless be made the basis of another act which inflicts damage upon other property owners and as to the latter no remedy exists, for the reason that the latter act is a consequence of the first illegal act. I have found no such determination in the authorities. As before stated, whenever a recovery has been sought for consequential damages, it was either stated or assumed, in denial thereof, that the primary act of the company sought to be charged had the sanction of law.

As was stated by Judge Denio, in Bellinger v. N. Y. C. R. R. Co., 23 N. Y., 47: “ If one chooses, of his own authority, to interfere with a water course, even upon his own land, he as a general rule does it at his peril, as respects other riparian owners above or below. But the rule is different where one acts under authority of law. There he has the sanction of the state for what he does, and unless he commits a fault in the manner of doing it, he is completely justified. This is, of course, to be understood as limited to cases in which the legislature has the constitutional power to act. If, therefore, a corporation or an officer should be authorized by a statute to take the property of individuals for any purpose, however public or generally beneficial, without compensation, or for a private use, making compensa^ tian, the pretended authority would be wholly void, and of course could afford no protection to any one. But this limitation has no application to cases where property is not taken, but only subjected to damages consequential upon some act done by the state or pursuant to its authority." It'would seem to follow from this that if the act was not done by the state, or by its authority, then it furnishes no protection when attacked. It is said in the Conklin case .that, “ A change made by the commissioners is deemed an incident to the existence of the road as a public highway, and is assumed to be dictated by the public necessity, and justified by the resultant public benefit." This statement shows that the structure here is dependent upon and appertains to the embankment in Water street; it is one of the things which is a natural consequence of the original structure; was a necessity of it; the railroad is justified by necessity and is a public benefit, when it is lawful, but •when it is unlawful, and a nuisance, its existence cannot be justified, as it then ceases to be a necessity or a benefit, but becomes a wrong as to the public, if its wrong affects the public, as to the individual if- it only affects him or specially affects him. If what is necessarily incidental to the main structure under these circumstances inflicts damage, I see no reason why it does not become ■ the proximate cause of injury, for which a recovery may be had. Vandenburgh v. Truax, 4 Den., 465; Pollett v. Long, 56 N.Y., 200; Lowery v. Manhattan Ry. Co., 99 id., 158.

It is, also, said that this structure was a change of grade authorized by the city who delegated its construction to defendant,and as no claim is made that the work was improperly or unskilfully done, it is not liable. It is plain, if this claim be true, that no recovery can be had. That there was a change of grade in fact, and that such structure furnishes no part of the railroad, and is not used by it, is conceded. It is not denied but that a municipality may raise or lower the grade of a street without liability to an abutting owner, or that the railroad company may, with like exemption, perform the same acts when charged with its performance by lawful authority. That the limitations are upon the exercise of this power it is not necessary now to discuss. We are thus confronted with the question, was the change in the grade of this street ever authorized by competent authority ? When the Reining case was before this court, there was division in the court upon this question, a majority holding that the acts of the council was not a change of the grade of the street. The court of appeals affirmed this view, using the following language:

“ The second proposition of the counsel of the defendant, that the building of the embankment was a mere change of grade of Water street, made under the authority of the city, is, we think, untenable. The charter of Buffalo gives plenary power to the city to fix and change the grade of streets by formal proceedings, and provides that when a grade is established or altered a description of such grade shall be made and recorded by the city clerk. * * * The action of the common council granting permission to the defendant to occupy Water street, while it involved as a consequence the construction of an embankment in Water street, did not purport to be an exercise of the power to change the grade of the street under the charter. It does not appear that any description was made or recorded as is required when a new grade is established.”

The same authority, and none other, which authorized the construction in Water street, authorized the construction now complained of; there was no other or different exercise of charter powers with respect to the change of the grade of the street in the one case than in the other; they are alike with this exception, that the Commercial street approach was to be subject to the approval of the city engineer. Practically, in this respect, there was no difference, for the grant specifies other instances where the construction was to be subject to the approval of the engineer, and in fact, as the record shows, the whole plan of the construction in Water • street was submitted to him.

This difference, however, is not deemed controlling of the question involved. By § 2 of title 9, City Charter, Laws 1870, the city is authorized to establish the grade of a street, and such grade, when established, shall be described, and such description and all alterations thereof shall be recorded in a book kept by the city clerk, and no street shall be worked .until the grade is established and recorded. It appears from the case that the-grade of Commercial street was first established and recorded many years ago; that in 1841, and again in 1843, it was altered, and, as altered, recorded, since which time no action has been taken in respect thereto, based upon any authority, except the-action of defendant. By § 7 the city is authorized to grade and regrade streets. Section 8 provides : “ When the expense of the-work or improvement mentioned in the last section will exceed the sum of five hundred dollars, it shall not be ordered, except, 1: Upon the vote of three-fourths of all the members elected to the common council, and after notice of the intention to order it. shall have been published three times a week for two weeks in the official paper of the city; or, 2, unless it shall be applied for by a majority of the owners, resident in the city, of the lands fronting on the street * * * the lineal front of whose lands shall constitute at least two-fifths of all the feet front of the lands on the street * * * along which such improvement is to be made.” Upon the application by petition, it is to be referred to the assessors of the city for their certificate that the owners are a majority and own the required number of feet, or it may not be ordered. By § 17, it is provided: “ When the city shall alter the recorded grade of any street * * * the owner of any house or lot fronting thereon may, within one year thereafter, claim damages by reason of such alteration. Upon presentation of such claim, the common council shall refer it to the assessors to-hear such claim, and if they shall allow any damages, to assess the same upon the real estate benefited by the alteration. The amount so assessed shall, when collected, be paid over to such claimant.” These are all the provisions of the charter authorizing the change of grade of a street, and all that permit an award for damage. It is conceded that the cost of this change of grade exceeded five hundred dollars ; such fact did not appear in the former record.

It is not claimed that any vote of the council was taken authorizing a change of grade, or that any notice of intention to change the grade was ever published, or notice of any kind given, or that any action was taken, except the vote taken authorizing the construction of the road, or that any petition was ever filed or made for a change of grade. We have, therefore, an entire absence of the exercise of any powers in conformity with the charter, or of any attempt to exercise them. "The charter contemplates, when a. change of grade is proposed, that the people to be affected thereby shall have notice, and shall also have the benefit of the judgment of three-fourths of the duly elected members of the council first, upon the question of the advisability of making the change second, as to what portion of the street shall be affected; what the grade shall be, etc. If an embankment is to be constructed, it is of the highest importance that it be so placed as to be as little damage to abutting owners as possible, both for the benefit of the person injured and for the benefit of the persons who must subsequently pay the damages to be assessed, if any accrue, and also that a nuisance may not be created; to this end the statute vests this power in three-fourths of all the members elected, and in no ■other person or body. We are cited to no authority or statute where powers such as these can be delegated to another person, body or branch of the city government. In the distribution of such powers, it was not contemplated that this burden and responsibility could be shifted to one person, as has been here attempted. The city was only authorized to act in this regard by the charter ; the city engineer was charged with no duty, and was .authorized to exercise no power in determining ■ how the street should be carried over, the embankment, or what position it should .occupy in the street; the fact that the plan of the structure was submitted to and approved of by him, and that he determined that the place it occupied in the street best met the requirements of the street traffic, does not legalize the structure, or constitute it a change of grade. The engineer of defendant, who drew the plan and submitted it to the engineer, had quite as much power, so far as the legalizing of this grade was concerned, as did the city engineer.

The action of the council, therefore, in delegating this power, and the approval by the city engineer, were without authority and cannot be upheld. Savage v. The City of Buffalo, 37 St. Rep., 518. What was said in that case is quite appropriate here. It thus appears that there was an utter failure 'to take the steps essential to change the grade of Commercial street, and in consequence the same rule finds force as .was applied to Water street in the jReining case. Finally it is said that defendant has a remedy .against the city for damages which she must pursue. I have tried to show that, based upon the illegality of the structure in Water street, the approach falls under condemnation. In the Ottenot case, and upon the former appeal in this case, it was assumed that both structures were legal: with this assumption overthrown, it is seen that the claim for damage cannot be enforced against the city, for the reason that there has been no authorized change of grade of the street in front of plaintiff’s premises, which, as we have seen, is essential before a claim for assessment of damage is permissible. What is now in this street, in front of plaintiff’s premises, is an unauthorized obstruction placed there by defendant, by which is occasioned the damage complained of. We have thus reached the conclusion that upon the facts and the law, as we now understand it, the direction of a verdict for defendant was wrong; the case should have been submitted to the jury. Judgment is therefore reversed, and a new trial ordered, with costs to abide the event.

Titus, Ch. J., and White, J., concur.


author: Hatch, J. White, J.

text:
    Michael Corcoran, Resp’t, v. The Delaware, Lackawanna & Western Railroad Co., App’lt.

      (Superior Court of Buffalo, General Term,

      Filed July 8, 1892.)

    Railroad—Negligence—Promulgation of rules.
    Plaintiff was injured while repairing a car with a flag out by the switching of another car against the one he was at work upon. Negligence was predicated upon an alleged failure of defendant to make and promulgate-rules for the safety of its car repairers. Plaintiff testified that he was told to put up a flag, but was not informed of any rule requiring it to be done; that he never saw any such rule; never asked about any rules, and that he knew that railroad companies had rules as a general thing. Plaintiff was. non-suited, but the non-suit was afterward set aside and a new trial granted. Held, error.
    Appeal from an order setting aside a nonsuit and granting a new trial herein.

      John G. Milburn, for resp’t; George W. Cothran, for app’lt.
   Hatch, J.

—Plaintiff was injured, as he claims, by the negligence of defendant, while in its employ in the capacity of a car-repairer. The alleged negligence consists in the failure by defendant to adopt and promulgate reasonable rules and regulations for the safety of its car repairers. At the trial plaintiff was non-suited, and thereafter a motion for a new trial was made upon the minutes of the court, which was granted. In assigning a reason for granting the new trial, the learned judge wrote: “The plaintiff gave some proof which tended to show that defendant had not made and promulgated sufficient rules to govern its employees; enough, I think, to throw the burden of proving that such rules, if any, had been made upon the defendant, and the case, as it then stood, should have gone to the jury.” The learned counsel for respondent places himself squarely upon the position taken by the-trial court, and makes no claim that defendant was guilty of negligence in other respects. The question is thus sharply defined. It is conceded that the law imposed a duty upon defendant to adopt and promulgate reasonable rules and regulations for the conduct of its business and the safety of its car repairers. Defendant, however, contends that it has met the requirements of the law in this regard, and in this particular case that the court of appeals has decided that its rules as adopted were in law sufficient, and were properly promulgated. As to that appeal and record this contention must be upheld. Corcoran v. D., L. & W. R. R. Co., 126 N. Y., 675; 38 St. Rep., 251.

The claim now is that the present record is essentially different. It is a primary principle that negligence must be established by affirmative proof, and is never to be presumed. Curtis v. R. & S. R. R. Co., 18 N. Y., 534; Cordell v. N. Y. C. & H. R. R. R. Co., 75 id., 330.

It is no longer sufficient to authorize the submission of a case to the jury upon a mere scintilla of evidence; there must be proof to sustain the verdict when rendered. Dwight v. Germania Life Ins. Co., 103 N. Y., 341; 3 St. Rep., 115; Baulec v. N. Y. & H. R. R. Co., 59 N. Y., 356.

Examined in the light of these roles, it seems to my mind that ■plaintiff must fail. I quote his whole testimony bearing upon the .alleged negligence: “I never saw any rule or regulation of the -company in relation to the flags prior to my injury; and I was never informed by anybody connected with the yard that they had a rule requiring me to put up a flag; Mr. Musenberger said .something to me about putting up a flag; he didn’t say anything to me about any rule or regulation of the company requiring me to put up a flag; I never asked anybody if there was any rules; in the years I had worked for these other railroad companies, the .Lake Shore and Erie and the Nickel Plate, I never was furnished with a copy of their rules; but I knew they had rules; when I -came to work for the Lackawanna I never asked any official, or my foreman, or anybody, for the rules of the road; I never made .any inquiry; I never spoke to any of these people about the rules -of flags; I never asked Musenberger whether there was any rules -of the company; Mr. Faber is foreman of the car department at East Buffalo; I never asked him nor Mr. Fomes about the rules; I knew at that time that railroad companies had rules as a general thing; the companies I had worked for had; I worked off and on for the Lackawanna before, but I never was furnished with a copy of the rules.” Giving full force to this testimony it amounts to this: “ I never saw any rules; I never was informed of any rules; 1 never was furnished with any rules; I never asked for any rules." The significant feature about it is that the plaintiff nowhere says that he did not know that rules of the company existed; consequently this testimony falls short of establishing affirmatively that he was ignorant of the existence of rules, while it does appear that he knew that “ railroad companies had rules as a general thing.”

The whole of the testimony is entirely consistent with the fact that defendant had adopted and promulgated sufficient rules. Plaintiff nowhere disputes it, nor does he furnish any circumstances from-which an inference that defendant has not sufficiently complied with the law can fairly arise. It is the duty -of an employee to make use of his faculties to inform himself. If the rules were placed within his vision then he was bound to see them, and if they were placed where the employees usually came, upon the blackboards and about the shops, or if he had reason to suppose that any existed, and by inquiry he could obtain them, it became his duty to visit the place or make the inquiry and thus inform himself. The most that can be claimed from the testimony is that plaintiff was ignorant of the existence of the rules, but the most dense ignorance upon the subject can exist with the employee, and yet the master have complied with every obligation resting upon it. There is no obligation which required defendant to place a copy of rules in plaintiff’s hands or call his particular attention to the portions which particularly apply to him; the obligation is discharged when the defendant has placed them in the usual and ordinary places where information is given of the business of the company and where orders are made known. YVhen this is done the duty rests upon the employee and he takes the risk if he fails to inform himself. Corcoran v. D., L. & W. R. R. Co., supra.

I am unable to find any evidence upon which the jury can say that this was not done; therefore, plaintiff has failed to prove his case.

In the cases relied upon by respondent the rules of the road and the steps taken to promulgate them appeared, and the court passed upon the sufficiency of what had been done. For the reasons stated they are not applicable to the facts here. It follows that the order granting a new trial should be reversed and judgment ordered for defendant.

White, J.

—I am in favor of a reversal of the order granting a new trial, for the reason that even if the plaintiff was not chargeable with knowledge or notice of the existence of any rules or regulations adopted or promulgated by the defendant for his safety as a car repairer, there is no evidence that the non-existence of such rules or regulations was the proximate cause of the injury complained of.

Titus, Ch. J., not sitting.