author:
PATTERSON, J.
      WILLIAMS, J.

text:
    Catherine Wynn v. Central Park, N. & E. R. R. Co.
    (Supreme Court, Appellate Division, First Department.
    November 6, 1896.)
    Carriers—Injuries to passengers—Instructions.
    Where a passenger was injured by the breaking of a brake chain in a street car, but there is no evidence that any other x>r safer appliances were in use, it is error, in an action for the injury, to charge that the appliances used by defendant must be the best that skill and science have contrived, and which are in practical use.” Williams, J., dissenting, on the ground that the instruction referred to the condition of the chain.
    Appeal from court of common pleas, trial term.
    Action by Catherine Wynn against the Central Park, North & East River Railroad Company to recover damages for injuries sustained while a passenger on a street car of defendant’s line. From a judgment upon a verdict for plaintiff, and from an order denying a new trial upon the minutes of the court, defendant appeals.
    The facts are stated by Mr. Justice WILLIAMS as follows:
    “ The action was brought to recover damages for injuries to the plaintiff alleged to have been caused by the negligence of the defendant. The accident occurred upon defendant’s street railroad on Fifty-Ninth Street, New York City, November 2, 1887. The plaintiff entered a car about 7 p. m. at Tenth Avenue, and started east on Fifty-Ninth Street. The car was drawn by a pair of horses, the driver being the only person in charge of the car. There was no conductor. The car was heavily loaded, some of the passengers standing up. The plaintiff was seated. Between Eighth and Seventh avenues the car was driven quite rapidly, the driver whipping the horses so that they galloped. At Seventh avenue the car approached a considerable down grade, which extended from Seventh to Sixth avenue. At Seventh avenue, in order to check the speed of the car, which was going quite rapidly, the driver applied the brake with such force that the brake chain, was broken. There was then nothing to check the momentum of the car, and it went down the grade with increasing velocity, the horses being driven on a run by the driver to keep-them away from the car. At Sixth avenue the car struck a substantially level road, and continued on to Fifth avenue, where it collided with another car standing still on the defendant’s track. As a result of the collision the plaintiff' was: thrown from her seat and received the injuries, damages for vzhich this action was brought. One of the links of the brake chain was broken, and the connection was thereby severed between the brake handle and the brake, so that the brake was useless, and could not be used to check the speed of the car. The absence of contributory negligence on the part of • the plaintiff was not disputed. The only questions in controversy on the trial were the alleged negligence on the part of the defendant, and the amount of damages the plaintiff was-entitled to recover for the injuries received by her, if entitled to recover at all.”
    Henry Thompson, for appellant; Clarence Lexow and Charles K. Beekman, for respondent.
   PATTERSON, J.

—The immediate cause of the accident which resulted in the injuries sustained by the plaintiff was. the breaking of a link in the chain connected with, and forming part of, the breaking apparatus attached to the car. The-negligence imputed to the defendant was not only in the alleged improper conduct of the driver in driving at a dangerous rate of speed, but also in allowing the car to be used with a breaking equipment out of order or imperfect. Testimony was given relating both to the construction of the chain, and as to an inspection of the running gear of which it was part. It was: shown that -it consisted of 21 1-inch and 7 2-inch links. The small links were § iron, and the large ones of diameter, and were part of the same braking appliance, in character, that was used on all the cars of the company. There was no testimony to the point that the chain was not, if in good condition, adequate to any strain that might be put upon it in applying the brake,'or that, if in proper condition, it would not suffice as an appliance -suitable and sufficient for the purpose for which it was used, or that there was any safer or better appliance in use. On that point the only issue before the jury was as to the condition of the chain, and the care and prudence exercised by the defendant in inspecting or examining it to ascertain its condition prior to the car being sent out on the day the accident happened. Notwithstanding that situation of the case, there was imported into the trial an element, the introduction of which could not but prejudice the defendant and raise a false issue. The plaintiff requested, the court to - charge that “ the appliances used by the company must be the best appliances which skill and science has contrived, and which are in practical use.” That request was complied with, and an exception was taken. That statement of the law was reiterated by the court. In comlnenting upon the subject of the obligation of the plaintiff to prove that the negligence of the defendant’s servant was the sole cause of the injury, the learned court again said to the jury :

“It will be necessary for you to determine from the evidence whether the appliances used to operate the brake were the best which skill and science had contrived, and which were in practical use.”

Whether that is quite an accurate statement of the abstract rule of law, it is not now material to inquire. That a railroad company may be chargeable with negligence to one injured from a failure to introduce improvements in its apparatus which have been tested and found materially to "contribute to the safety of passengers, and which it is reasonably practicable to adopt, is true. Smith v. railroad Co., 19 N. Y. 127. But there was no evidence in this case to raise the question of there being any other or different or superior apparatus in use, with which the defendant could have equipped its car, and that would have tended to insure greater safety to the passengers upon it. All the testimony on the .subject of the nature of the breaking apparatus was in one direction. Three witnesses called by the defendant testified on that topic. Gerard swore that he knew of no other method of applying power to stop a horse car than the one used. Bomaine, a car-builder, swore that he knew of no other or better way of working brakes than that used on this car, and that it was the method in use on all cars, whether operated by horse power or by electricity, and he had never heard of the breaking of one of the large links in a chain. Oakley, an assistant superintendent of the Madison Avenue Line, never heard, in all his experience, of a chain breaking in the way the one on this car did. There is nothing to contradict or impair the effect of this evidence. There is nothing to go to the jury on the question of the general character or sufficiency of the chain and brake, if it Avere in good order Avhen the car AArent into service the day of the accident. The charge of the learned judge opened an issue that was not in the case, and we cannot say that it may not have been upon some notion that a better braking apparatus, in design or general character, should have been furnished, that the jury acted in finding their verdict.

For this reason, and Avithout considering the many other errors assigned, the judgment should be reversed, Avith costs to the appellant to abide'the event.

MALT BBUFTT, P. J., and O’BBIEM and IYGBAHAM, JJ., concur.

WILLIAMS, J.

(dissenting).—This case had once before been tried, a verdict had been rendered in favor of the plaintiff, and the judgment entered thereon had been affirmed on appeal by the general term. 14 N. Y. Supp. 172. The court of appeals, however, reversed the judgment, and ordered a new trial, by reason of an error committed by the trial court in. submitting Lu the jury the question whether the driver of the? car was guilty of negligence in the management of the car, after the breaking of the brake chain, which negligence caused the plaintiff’s injuries. The court held that there was no evidence in the case upon that trial upon which the jury would have been justified in charging the defendant with such negligence on the part of the driver. 133 N. Y. 575 ; 44 S. R. 673. I am unable to say what the evidence upon that trial was, except so far as the opinion of the court of appeals refers thereto. The learned trial court, upon the second trial, which we are now called upon to review, followed the decision of the court of appeals, and withdrew from the jury all questions as to th& negligence of the driver after the breaking of the brake chain. The question as to the driver’s negligence before the breaking of the chain was, however, left to the jury, the court in its-charge saying :

“ The plaintiff’s husband testified that the driver recklessly drove the car in question before it reached the hill of Seventh, avenue. That is denied by the driver in question. If you. credit the testimony of the plaintiff’s husband, you may take that into consideration, in passing upon the question whether the driver was negligent before the breaking of the brake chain.”

This was excepted to by defendant. The court, upon being requested by defendant to charge that there is no question of the driver’s conduct "to be submitted to the jury, upon which they can properly find the defendant chargeable with negligence,” refused to so charge, but charged the request, modifying it by adding the words “ after the breaking of the chain.”' The defendant excepted to the refusal to charge as requested, and to the request charged as modified. The jury were not-instructed by the court as to the necessity of their finding, in order to render the defendant liable for damages for plaintiff’s injuries by reason of the negligence of the driver before the breaking of the chain, that such negligence must have caused, the plaintiff’s injuries. No request upon this particular point was made by the defendant. The court, however, instructed the jury generally that plaintiff’s right to recover depended upon her establishing to their satisfaction that the defendant,, by its servants, was the direct and sole cause of the injury; and, in the absence of any request by the defendant to charge as to the specific point hereinbefore suggested", it must be-assumed that the jury did understand that they must find that the negligence of the driver referred to caused the plaintiff’s injuries, in order that by reason of such negligence they could charge the defendant with liability for damages for such injuries. So that the only question remaining u¡Don this branch of the case is whether, upon the evidence, the jury would have, been justified in finding that the alleged negligence of the driver, before the breaking of the chain, caused the accident. There was evidence upon which the jury might find that the driver had urged his horses into a gallop, and was driving them quite rapidly, before and up to the time he reached Seventh avenue and applied the brake. We are aware that the driver-testified that the car was stopped at Seventh Avenue, or just-west of that point, and some women passengers were taken on the car, and that the occasion for his setting the brake after the car started again, when the chain broke, was that a large, beer wagon had driven on the track in front of the car, and it was necessary to slow down the car in order to avoid a collision with the beer wagon. The other evidence in the case Avas, however, in conflict with the evidence given by the driver; and the jury had a right to disbelieAre the driver, and find that the necessity for setting the brake at the time the chain broke Avas that the car Avas going so rapidly Avhen it came to Seventh AA7enue and started on the down grade toAvards Sixth Avenue.

It is claimed that it Avas improper and negligent conduct on the part of the driver to drive so rapidly before reaching Seventh Avenue, considering that the car Avas heavily loaded, and was approaching a considerable down grade, Avhen the car Avould have to be slowed doAvn, and the brake AA'ould have to-be applied Avith great' force to effect such purpose; that such reckless driving, connected Avith the unusual force necessary to-be applied to the brake to check the speed of the car, and then the applying of such unusual force,—that all these acts, taken together, Avere improper and negligent conduct, Avhich resulted in and caused the breaking of the chain, and the accident and injuries to plaintiff following the same. This Avas a phase of the case Avhich Avas not considered or passed upon by the court of appeals, so far as ap}Dears from the case as reported; and it seems to me that these facts raised fairly a question for the jury, and Avhich Avas properly submitted to them. I think,, under the circumstances, these exceptions Avere not Avell taken.

The court also submitted to the jury the question whether the defendant Avas guilty of negligence AArhich caused the plaintiff’s injuries, in failing to make proper inspection of the brake-chain before the chain broke and the accident occurred. This. Avas entirely proper. One of the links of the chain broke and Avas lost. Its actual condition could not be ascertained by an examination of it after the accident, but the jury were justified in drawing the inference, from the fact of its breaking as it did, that it was defective in some Avay. The defendant gave evidence tending to sIioav that there Avas a sufficient inspection of the chain, and that no defect was visible or Avas discoArered; and. yet it did break,- and it Avas one of the large links at the end of the chain, made of ^g-inch iron. An examination of the evidence on the part of the defendant as to the nature and extent of the inspection, and considering the fact that this large link did break when the driver set the brake at the time of the accident, and that it is a fair inference that it must have been defective or it would not have broken, and considering the rule that the fact the accident occurred as it did was enough proof of negligence to calbupon the defendant for some explanation. I am of the opinion that the credibility of the witness who testified to the inspection was to be determined by the jury, and that the question as to whether the defendant was guilty of negligence in failing to make proper inspection of the chain and discover "the defect in the link that broke was one of fact, for the jury, and was properly submitted for their determination.

It is claimed that the court submitted to the jury, as a ground of negligence, the question whether the brake and appliances in use by defendant upon its road were the best which skill and science had contrived, and which were in practical use upon street railroads. But it seems to me that such a question was not submitted to the jury, so far as the general construction of the appliances were concerned ; that at most the question related only to the condition of the particular appliance in question,— whether it was defective or not. The fourth request handed up by the defendant was charged, before the court made its general charge in the case. This request was in the following language:

“ That carriers of passengers are held to stricter accountability in the case of a vehicle propelled by steam thirty or forty miles an hour than in the case of vehicles drawn by horses at the rate of six or eight miles an hour ; that experience in carrying passengers for years in horse cars having proved the safety of the device for applying brakes, and the efficiency of the method of constructing and operating them, the defendant was" justified in relying upon them.”

This was a clear statement that- the defendant was not guilty of negligence in the use of the appliances, so far as the general method of construction was concerned. In the commencement of the general charge the court did say that, in order to determine as to the defendant’s negligence, it would be necessary to determine from the evidence whether the appliances which were used to operate this brake were the best which skill and science had contrived, and which were in practical use; but his suggestion must be construed in view of the request already charged, and the fact that nothing was said by the court as to the general method of construction of brake appliances, but that only the condition of this particular brake, as to its defects, and the sufficiency of the inspection to detect such defects, was discussed by the court, or called to the attention of the jury, and that, no evidence was given tending to show that the general method or construction of the appliances in use was improper. Hear the close of the general charge the court used the following language :

“ If you find from the evidence that the defendant company exercised, under the circumstances, the highest degree of care to protect its passengers from injury, and that the appliances used by the company were the best that skill and science had contrived, and which are in practical use, your verdict will be for the defendant.”

And among the requests made by the defendant after the general charge had been made was one in the following language :

“ That it affirmatively appears that the appliances which were used to operate the brake were the best appliances which skill and science had contrived, and which were in practical use, and that there is no issue thereon to be submitted to the jury, upon which they may properly find the defendant chargeable with negligence.”

This request was refused, with exception. I think the court here understood the request as referring to the particular construction of this brake, and not to the general method of construction of brakes on the defendant’s road, and that the jury, in view of the considerations already referred to, were not misled. There had been no evidence given tending to show that the general method of construction of defendant’s brakes was improper, and the court had not, in its charge, discussed such a question, or called the attention of the jury to any considerations bearing upon that subject. When the defendant put the question clearly to the court, in its request first referred to, the court charged the request in the defendant’s favor. The other request and suggestions to the jury literally applied to the appliance in question, and which was defective; and I think the language was so understood by the court, and that the jury were not misled, taking the whole charge together.

It is said that the court erred in submitting to the jury, as a proper element of damages, the composition of the plaintiff’s family, the labor performed by plaintiff before and after she was-injured, and now her capacity to labor was affected by her injuries. One of the requests handed up to the court by the plaintiff before the general charge was made, and which was charged, was in the following language, viz.:

In determining the damages the jury should consider the evidence as to who composed the plaintiff’s family, and as to what she did before the injury, and how she was affected by it, and as to the pain and suffering endured by her.”

And among the requests handed to the court by the defendant before the general charge .was made, and which was charged, was one in the following language, viz.:

That no claim is made in the complaint for plaintiff’s loss of time, or inability to perform work and services, and no recovery can be had for such loss of time or incapacity to work.” In the general charge the court said:

“ In assessing the damages, * * * you are to consider and determine the nature and extent of the injuries, if any, sustained by the plaintiff by reason of the accident. * * * The plaintiff is entitled to recover a fair and reasonable compensation for the pain and suffering which she has endured. * * *”

There seems to me to have been no error in the charge in this respect, taken all together. The true rule of law was laid down, and the jury could in no way have been misled. It was proper for the jury to consider the evidence as to the composition of plaintiff’s family, and the amount of work she did in the family before and after the injuries were received, and how she was affected, for the purpose of judging as to the extent of the injuries, and to what extent she ivas affected physically. Minick v. City of Troy, 19 Hun, 253, affirmed 83 N. Y. 514. The evidence was given without objection as bearing upon this subject, and it was not error for the court to instruct the jury to consider all the evidence given in determining the amount of the damages. If the defendant feared that the jury would give any improper effect to the evidence, it could have requested the court to give specific instructions to the jury on the subject. In the absence of such request, we cannot assume or infer that the jury did give any improper effect thereto.

I cannot say, under the evidence, that the verdict of the jury was excessive- in amount. There was a controversy on the trial as to the extent of the plaintiff’s injuries, and evidence was given as to the pain and suffering she endured. At the time of the trial, years had elapsed since the accident, and it is claimed that the injuries were still uncured, and were in their nature permanent. The plaintiff was 40 or 50 years of age, and it was claimed that she was obliged to wear a truss. I do not think the case is one calling upon the court to interfere with the finding of the jury as to what amount would fairly .compensate the plaintiff for the injuries received by her in the accident.

The judgment and order appealed from should be affirmed, with costs.


source: Caselaw Access Project

author: WILLIAMS, J.

license: Public Domain

text:
    Union Square Bank of City of New York v. Theodore Reichmann et al.

    (Supreme Court, Appellate Division, First Department.
    November 6, 1896.)
    Depositions—Letters rogatory—Answers in foreign language.
    A deposition taken under letters rogatory in a foreign country, on interrogatories settled in English, may be taken and returned in the language of the coutry where taken, without an order to that effect.
    Appeal from special term, New York County.
    Action by the union Square Bank of the City of New York against Theodore Beichmann, impleaded with Charles Bieck and James Harvey Bostwick, on á promissory note. From a judgment on a verdict for plaintiff, defendant Beichmann appeals.
    William H. Maginnis, for appellant; A. L. Fromme, for respondent.
   WILLIAMS, J.

—The action was brought upon a promissory note made by the firm of Bostwick, Beick & Co. The issue of fact tried was whether the appellant was a member of that firm. Upon the trial, counsel for the appellant offered in evidence his (appellant’s) deposition taken in Austria, under letters rogatory issued and sent to an Austrian court or judge thereof. The deposition was objected to, on the ground that the interrogatories were put and answered in German, while the interrogatories as settled were in English only. . The court sustained the objection, stating, as grounds for the ruling, that it appeared the interrogatories were settled in the English language only, and that there was no order of the court directing or permitting the translation thereof into .any other language, and that they were translated, and that the answers were taken down in German only, it being admitted the appellant was familiar Avith the English language. ¡Neither the questions nor the »answers contained in the deposition are before the court, and we do not know whether the evidence was material or necessary for the appellant, upon the trial of the issue of fact submitted to the jury; but we must assume the evidence was important, and that its exclusion, if erroneous, so injuriously affected the appellant, as to require a reversal of the judgment, and the direction of a new trial. Ho suggestion was made at the time of the trial that the evidence in the deposition was immaterial. Ho objection of that kind was made or ruled upon, and no claim was made upon the argument in this court that there was the absence of anything in the record to show the evidence was important, or that the appellant was prejudiced by the exclusion of the deposition. It. does appear that the interrogatories annexed to the letters rogatory were settled in English, and there was no proidsion anywhere as to their being executed or returned in any other language than English. It also appears that the interrogatories were translated into German. It does not appear in Avhat language the interrogatories were propounded to the appellant, or in Avhat language he made the answers, but the ansAvers were written down and returned to this court in German only.

The respondent contends that section 22 of the Code of Civil Procedure requires all records or other proceeding in court, except where otherwise especially prescribed by law, to be in English, and that the answers returned to these interrogatories, being in German only, were not admissible in evidence, under this provision. It is also argued that it was improper and. irregular to execute these letters rogatory by taking down and returning the answers in German only, inasmuch as the interrogatories were settled in English only, and not in German, under the provision of section 912 of the Code of Civil Procedure. It may well be doubted whether the provisions of section 22 of the Code have any application to the letters rogatory; but even if they have, and even if the execution of the letters, by taking and returning the answers of appellant in German only, was improper and irregular, still the remedy of the respondent was by motion to suppress the deposition, "under the provisions of section 910 of the Code of Civil Procedure, and it was too late to raise the question at the trial. Those provisions are that, when it appears by affidavit that a deposition has been improperly or irregularly taken and returned, an order for the suppression of the deposition may be made by the court upon the application of the party aggrieved, upon notice to the adverse party. Under these provisions it has frequently been held that when there has been an opportunity to correct an improper execution of a commission, either by ordering a re-execution thereof, or quashing the return, no objections because of such irregular or improper execution will be heard on the trial.

In Wright v. Cabot, 89 N. Y. 570-577, one of plaintiffs, examined under commission on cross-examination was requested to annex copies of letters constituting a correspondence to the commission. The witness annexed extracts from the letters, and not the whole of the same. On the trial, the plaintiff read these extracts in evidence, under an objection and exception by the defendants. It was held that the defendants were undoubtedly entitled to have the whole of the letters, and not extracts; but, if they so desired, their remedy was by motion, in advance of the trial, to have the error in the execution of the commission corrected, either by annexing the full letters, or striking out the extracts, or suppressing the deposition; and not having resorted to that remedy, they must be held to have assented to the mode in which the commission was executed and returned; that this rule was reasonable and just. See, also, in Sturm v. Insurance Co., 63 N. Y. 77-87; Sheldon v. Wood, 2 Bosw. 267; affirmed 24 N. Y. 607. This principle is applicable to the questions raised with reference to the improper execution of those letters rogatory, and the return of this deposition. If it was improper or irregular to translate the interrogatories into German, and to take the answers thereto, and return them to this court in German only, these were defects and irregularities which the respondent was well aware of before the trial; and if he was not satisfied with such execution of the letters rogatory, and return •of the deposition, it was his privilege to bring the matter to the attention of the court, under section 910 of the Code of Civil Procedure, by an application to suppress the deposition. Not having availed himself of this remedy, he must be held to have assented to the manner in which the deposition was taken and returned. Such a rule is just and reasonable, is supported by authority, and should have been adhered to in this case. The objection to the deposition for this reason was improperly sustained, and the deposition excluded. We cannot, however, assent to the proposition that there was any improper or irregular execution of the letters rogatory, or taking or return of the deposition.

It will be observed that section 913 of the Code makes no provision as to the manner in which the letters rogatory shall be executed or the deposition taken. The provision is only as to the manner in which the interrogatories shall be settled, and the deposition taken thereunder returned; that is, as prescribed with respect to commissions. The interrogatories were settled, and, so far as appears, the deposition was returned as prescribed by law, except as to the language in which the answers were written. The language used in putting the questions, in giving the answers, and in writing them down in the deposition, were matters relating to the execution of the letters rogatory, rather than to the return of the deposition. The Code makes absolutely no provision as to the manner in which the letters rogatory shall be executed ; and this omission can hardly be regarded as an oversight when we consider the nature of such letters rogatory, as they have been defined by the authorities and in the text-books of law. The letters rogatory issued in thisJ case indicate the true rule as to the execution thereof. They are directed to “ any judge or other tribunal having jurisdiction of civil causes, at Vienna, Empire of Austria ” ; and they expressly state :

“We therefore request you that, in furtherance of justice, you will, by the proper and usual process of your court, cause such witness * * * to appear before you, or some competent person by you for that purpose to be appointed and authorized, at a precise time by you to be fixed, and there to .answer on his oath or affirmation to the several interrogatories and cross-interrogatories hereto annexed, and that you will cause his deposition to be committed to writing, and returned to us; * * * and we shall be ready and willing to do the same for you in a similar case when required,” etc.

Ho attempt was made to prescribe the manner in which the letters rogatory were to be executed. The Code does provide as to a commission, and the commission is required, to direct the specific manner in which it shall be executed, while there is no such provision or direction as to letters rogatory. The Code itself gives us no information as to the nature of letters rogatory, and wTe must therefore assume the legislature inserted this provision in the Code having in mind the nature of letters rogatory, as ordinarily understood in legal literature.

Weeks, in his Law of Deposition (section 128), says:

“ Letters rogatory are derived from the civil law, and the practice under them is regulated by the civil law. They are largely made use of in courts of admiralty. They are issued by the court of one country to the court or judge of another country. There is a broad distinction between the execution of a commission and the procurement of testimony by the instrumentality of letters rogatory. In the former case the rules of procedure are established by the court issuing the commission, and are entirely under its control. In the latter, methods of procedure must, from the nature of the case, be altogether under the control of the foreign tribunal, which is appealed to for assistance in the administration of justice. We cannot execute our ownTaws in a foreign country, nor can we prescribe conditions for the performance of, a request which is based entirely upon the comity of nations, and which, if granted, is 'altogether ex gratia. We cannot dictate the methods to be pursued by a court whose assistance we invoke. The rules and practice of the foreign court must be the law of procedure in such cases. Letters rogatory were unknown to the common law. They came to us from the civil law, through the admiralty courts; and the civilians seem to agree that, in all that concerns the form' of procedure in such cases, the judge ought to observe the laws of his own country.”

See also, 13 Am. & Eng. Enc. Law, 266; 1 Greenl. Ev. § 320 ; Bouv. Law Dict.; Nelson v. U. S., 1 Pet. C. C. 237; Fed. Cas. No. 10,116; Kuhtman v. Brown, 4 Rich. Law, 479. In Kuhtman v. Brown, above, the commission was sent to Bremen. The interrogatories were in English. The answers were returned in German, annexed to a German translation of the 'interrogatories and cross-interrogatories. Objection was made that the answers should have been returned in English, or accompanied by -an English translation thereof, but the court held that the deposition was admissible in evidence.

We must assume that this deposition was taken according to the practice in Austria, the answers being written, in German. Such an execution of the letters rogatory cannot be said to have been improper or irregular if it was in accordance with the usual and customary practice in the Austrian courts. There is no requirement in the Code that the answer shall be returned in English, or accompanied by an English translation thereof. Suppose the court having the execution of the letters rogatory in charge did not understand English, and' could not write in the English language; conld it be said that it had no power to take the deposition? Clearly not. The deposition might properly be" taken and returned in the language it did use and understand. And we must assume, in the absence of any proof to the contrary, that the language of the court and its proceedings was German.

The deposition was, in either view we have suggested, erroneously excluded, and such error calls for a reversal of the judgment, and the granting of a new trial, with costs to the-appellant to abide the event.

All concur.


author: McADAM, J.

text:
    Meyer W. Livingston v. Louis Spero
    (No. 1).
    (Supreme Court, Appellate Term, First Department.
    October 29, 1896.)
    1. Evidence—Judicial notice—Deposit of earnest money.
    A court will take judicial notice that it is not customary to require from a vendor an affidavit as to the condition of his title on making a contract of sale, or to deposit earnest money in a trust company pending the execution of a deed.
    2. Assignment of account—Validity—When it may be questioned.
    A defendant in an action on an assigned account cannot question the validity of the assignment when it is in writing, under seal, and duly acknowledged.
    3. Witness—Cross-examination—Discretionary with court.
    A trial court has discretion in determining how far a defendant may cross-examine the assignor of an account to affect his credibility; and its decision thereon will not be reviewed except in cases of plain abuse.
    Appeal from sixth district court.
    Action by Meyer W. Livingston against Louis Spero. There was a judgment in favor of plaintiff, and6 defendant appeals.
    Oppenheim & Severance (W. F. Severance, of counsel), for appellant; L. Bronner (M. L. Erlanger, of counsel), for respondent.
   McADAM, J.

—The action was by the plaintiff as assignee of Mitchell L. Erlanger, an attorney at law, to recover $99 for two items,—one for $60, disbursements incurred in searching a title, and the other for professional services rendered in a police-court matter wherein the defendant was complainant, which latter claim was waived upon the trial. The answer was a general denial, with a plea of payment and counterclaim for $250 damages by reason of the gross negligence of the plaintiff’s assignor, by which the defendant was injured to that amount.

On July 24, 1895, the defendant employed Mr. Erlanger to search the title of five certain premises in East 136tli Street which the defendant on that day purchased for $60,000 from one Jacob Bieser. Before the contract of purchase was signed, Mr. Erlanger inquired of Mr. Bieser and his attorney as to the various incumbrances on the property, and, when these were ascertained, the defendant determined to purchase the same subject to five first mortgages, aggregating $48,000, by paying $1,500 in cash down and $10,500 at the time of the execution of the deed. A contract of purchase was thereupon executed, and $1,500 paid on account of the purchase price. Two checks were given to the order of Bieser, one for $900 and the other for $600. The latter was for commissions due to the brokers, and it was indorsed over to Mr. Erlanger, who retained $250 out of the check on account of fees, the understanding being that this sum should pay him for examining the title, and the defendant should pay the disbursements. The balance of the $600 ($350) was paid to the brokers for their commission. A few days after the contract was signed, it was discovered that foreclosure proceedings were pending, and Mr. Erlanger advised the defendant that he could not, on that account, be compelled to take title. The defendant, however, insisted upon taking title, and paid $600 costs to stop the foreclosure, and this sum was credited on the purchase price, making the cash payment on the contract $2,100, instead of $1,500. On account of this foreclosure, unpaid taxes, and the like, the title could not go through in the manner originally contemplated. After some negotiation certain deductions were allowed to the defendant, and advances made to him, ° and thus the third mortgage was reduced from $4,400 to $3,300. Mrs. Rieser, the vendor’s wife, contributed $350 in cash, and conveyed two pieces of property in Bedford Park, one of which the defendant sold, receiving for his equity $100. These allowances, together with the rents which the defendant had collected, finally enabled the sale to be completed without any substantial loss to the defendant. The defendant denied that he agreed to pay the disbursements attendant upon taking title, and insisted that the entire expense was to be paid by the brokers'; but the justice, on conflicting evidence, found for the plaintiff, and awarded $60 for the disbursements incurred. The negligence charged against Erlanger is that, prior to the execution of the contract, he should have obtained an affidavit from the vendor as to the actual condition of the incumbrances upon the property, or should have .advised that the $1,500 paid on the contract be deposited in some trust company to await the result of the examination of the title.

The vendor was not induced by Erlanger to sell the property to the defendant, but was taken to Erlanger’s office by the latter; and Erlanger had the right to assume that he was pecuniarily able, as well as willing, to carry out his contract, this being the legal presumption. Hart v. Hoffman, 44 How. Prac. 168 ; Cook v. Kroemeke, 4 Daly, 268; Goss v. Broom, 31 Minn. 484; 18 N. W. 290. The question arises as to how far we may take judicial notice of an attorney’s duty in matters of this kind. The court of appeals, in Bookman v. Railroad Co., 137 N. Y., at page 305, 33 N. E., at page 333, held that:

“ The nature and operation of the elevated railroads are so notorious that the courts may assume to be acquainted with, them; and, from the numerous cases which have come before them, they may take judicial knowledge that they increase the traffic in the wide avenues largely devoted to business purposes, and thus generally promote and increase the business there.”

In Frace v. Railroad Co., 143 N. Y. 182, 62 S. R. 166, it was held that the courts may take judicial notice of the fact that certain spark arresters are in common use upon engines or locomotives. And in Anderson v. Blood, 86 Hun, at page 247, 33 N. Y. Supp., at page 233, it was held that the courts may take judicial notice that it is not an uncommon occurrence for a party to make a contract for the purchase of real estate, expecting to resell the same at a profit before he is compelled to complete under his contract.

From the frequency with which contracts for the purchase of real estate have come before the courts, we may, upon the principles of these cases, take judicial notice of the fact that it is not usual, upon the execution of a contract, to take an affidavit from the vendor, or to deposit the earnest money in a trust company; the ownership of property, the equitable title to which is at once transferred to the vendee upon the making of the contract, being generally sufficient for his security. Moyer v. Hinman, 13 N. Y. 180. If any custom exists which establishes such a practice, it was for the defendant to prove it; for, if the plaintiff’s assignor was guilty of any omission of duty which amounted to negligence, the onus of establishing it was upon" the defendant. Negligence is not to be inferred, and must always be proved in order to negative the presumption that every one does his duty. Cahill v. Hilton, 106 N. Y. 512; 11 St. rep. 26; Pardee v. Kanady, 100 N. Y. 121. A mere conjecture or a bare possibility of negligence will not suffice. Searles v. Railway Co., 101 N. Y. 662; 5 N. E. 66. The defendant offered no evidence to prove negligence, and evidently left it to be inferred.

The plaintiff called two attorneys, who testified that there was no such custom as asserted by the defendant. They were then interrogated as to whether certain conditions would be evidence of negligence, and testified, under objection and •exception, that they would not. The questions were improper, as calling for a conclusion of law, which the court, and not the witnesses, was to decide (Crofut v. Ferry Co., 36 Barb. 201) ; but the answers in no manner prejudiced the defendant, for there was no evidence in the case establishing negligence, and the testimony objected to was so immaterial that its admission constitutes nothing more nor less than a harmless error, having no effect whatever on the result. Van Epps v. Harnes, 88 Hun, 229; 68 S. R. 261; Prior v. Flagler, 13 Misc. Rep. 118; Kenworthy v. Sanford, 13 Misc. Rep. 271; Tenney v. Berger, 93 N. Y. 524; Loder v. Whelpley, 111 N. Y. 247; 19 S. R. 631; Fay v. Muhlker, 1 Misc. Rep. 324; 48 S. R. 699.

While Erlanger ivas on the stand as a witness, the defendant undertook to show by him that the assignment to the plaintiff was without consideration, and that he was still interested in the claim. The assignment was in writing, under seal, duly acknowledged on April 17, 1896. Its object is immaterial. Gardner v. Barden, 34 N. Y. 483. It was good, though not on any consideration (Hays v. Hathorn, 74 N. Y. 486), and a defendant cannot question the consideration (Stone v. Frost, 61 N. Y. 614); and if a plaintiff has a valid transfer as against his assignor, and holds the legal title to the demand,, the defendant cannot inquire further (Sheridan v. Mayor, etc., of New York, 68 N. Y. 30). Where one receives a note, agreeing to collect it at his own expense, and to pay a sum to a third person when it is collected, he is the real party in interest. Eaton v. Alger, 47 N. Y. 345.

But the defendant says this was not his object in asking the questions,—that he intended to show that Erlanger was still interested, not for the purpose of impeaching the assignment, but to affect his credibility as a witness. We see no force in this suggestion. The assignor was naturally interested. Though he had assigned the claim, he had by that very act guarantied its existence. In Caton v. Lenox, 5 Rand. (Va.) 47, the court says: “ The law does not tolerate that any perstin should transfer to another a right which he has not himself.” Upon this principle, “ in every sale of a chattel there is an implied warranty of its existence, and1 that the vendor has. title to it.” Story, Sales, 184, $67. In every assignment of an instrument, the assignor impliedly warrants that it is valid, and the obligor liable to pay it. Howell v. Wilson, 2 Blackf.. 418. One who transfers a judgment is held to an implied warranty that there is such a judgment, arid that the defendant is liable to pay it. Bank v. Jarvis, 20 N. Y. 226 ; Ross v. Terry, 63 N. Y. 613 ; Flandrow v. Hammond, 148 N. Y. 129 ; 42 N. E. 511. The same rule applies to the transfer of negotiable instruments, and an indorser warrants that the instrument itself and all the prior signatures are genuine, that he has the right to transfer it, and that it is valid and enforceable. 2 Am. & Eng. Enc. Law, 385 ; Littauer v. Goldman, 72 N. Y. 510 ; Whitney v. Bank, 45 N. Y. 305; Fake v. Smith, 2 Abb. Dec. 76; Bell v. Dagg, 2 Thomp. & C. 623. In these cases, the relation of the transferror to the transaction established interest sufficient, under the common-law rule, to exclude him from the witness stand, though not a party to the action (29 Am. & Eng. Enc. Law, 564; Watson v. McLaren, 19 Wend. 557), with the exception of certain instances, which need not. be enumerated. This was because all persons interested, to-however small a degree, were excluded from giving evidence in favor of the party to whom that interest inclined them; and the rule was founded upon a presumed want of impartiality in the interested witness. 1 Phil. Ev. (Cowen, H. & E.’s Notes) 24, 25. The legislature concluded to change this rule by allowing the objection to go to the credibility of the witness, not to Ms competency. Laws 1848, p. 560, § 351. An assignor was, even then, excluded, if he had transferred the thing in action for the purpose of becoming a witness. Id. § 352-This restriction was stricken out three years afterwards. Code 1851, § 399. Finally, on April 13, 1857, section 399 of the Code was amended by allowing parties to actions to become witnesses in their own behalf. Laws 1857, c. 353. All objection to their competency was removed, and the court and jury were to determine the value of their evidence in the light of the interest of the "witness, whatever it might be. On the other hand, it cannot be affirmed, as a matter of law, that the jury are bound to give more weight to the testimony of one witness than they accord to that of another, on the ground of interest in the one and a lack of it in the other. 29 Am. & Eng. Enc. Law, 174.

In the present case Erlanger was charged, with transferring a claim that had no existence, and with gross negligence as well, thereby impugning his integrity and reflecting upon his professional character. The issue thus raised by the defendant made Erlanger more interested in the ultimate result of the action than his ássignee, the plaintiff, who could be affected only by the loss of the small amount involved. The question whether Erlanger received $1 or $60 for the demand assigned could not have affebted his credibility, in view of the facts. Truthfulness can hardly be graduated on such scales. While interest may affect the weight to be given to testimony, and the extent of interest, whenever material, become the subject of inquiry, it was clearly irrelevant in the form presented here. Erlanger’s interest appears in every line of the testimony, and it was impossible to show, by the questions propounded to him and overruled by the justice, that it was greater than already appeared, unless the effort was to show that he was not the real party in interest, and that was not its purpose, that defense not having been interposed.

A trial court has a discretion, depending on circumstances, in determining how far the cross-examination to affect credibility shall proceed, and the decision thereon is not the subject of review, except in cases of plain abuse and injustice. Peel v. Kern, 6 Hun, 298; Allen v. Bodine, 6 Barb. 383 ; Uline v. Railroad Co., 19 N. Y., at page 181; Smith v. Longmire, 15 Wkly. Dig. 353 ; Bayliss, Tr. Prac. 178. There was no injustice or abuse in the rulings of which the appellant complains, and we are directed “ to render judgment according to the justice of the case, without regard to technical errors or defects which do not affect the merits.” Code, § 3063, made applicable to district court appeals by section 1438, consolidation act; Marble v. Towman, 5 App. Div. 613.

In Chapin v. Hollister, 7 Bans. 456, 451, the court said :

“ There was no error in overruling the question put to the witness as to what the plaintiff gave him for the claim, and the other questions as to the consideration paid by the plaintiff for the cause of action. The assignment was in writing, and expressed valué received, which was a sufficient consideration. The evidence is claimed to have been proper as a cross-examination of the witness, who had testified to the value of the property. The amount paid, even if a trifling sum, would not tend to contradict the testimony of the witness in this particular, as a transfer of a claim of this kind is governed by circumstances, and depends upon the solvency of the defendant, the charges and expenses of litigation, the indisposition of the original claimant to enter into it, and various other considerations, some of which are purely personal, and could have no direct bearing upon the question of actual damages. How far the court should open the door upon a cross-examination to an inquiry which would call out all these matters is, to a considerable extent, a question of discretion; and, as there is no reason to suppose that it was improperly exercised in this case, there was no error in the decision of the justice in this respect.”

In Arend v. Steamship Co., 6 Lans. 457, affirmed 53 N. Y. 606, the court said:

“ The importer of the cask of wine, after learning that the defendants had suffered a loss of the wine, assigned his claim against the defendants to the plaintiff, who brought the action. Tne assignor was asked, on cross-examination, what he sold it for to the plaintiff. It was insisted that it would tend to show bias and interest in the witness. The price for which the claim sold was immaterial, and might tend to prejudice the mind of the jury. The assignor had no legal claim against his assignee in respect to the price. Interest or bias does not disqualify a witness. It may be taken into consideration in weighing the value of evidence, but there-would be no legitimate inference as to interest or bias against the witness on account of th¿ price.”

In King v. Railroad Co., 72 N. Y. 607, one of the plaintiff’s attorneys was called as a witness in his behalf, and gave material testimony. Upon cross-examination he testified that his compensation depended in some degree upon the result of the action. He was then asked, “ To what extent ? ” This was objected to, and objection sustained. Held, no error; that the extent of a cross-examination upon a collateral issue as to the credibility of the witness is in the discretion of the court, and its holding is not the subject of review unless there is an abuse of discretion.

In Davidson v. Miner, 9 How. Prac. 524,—a case which was tried in 1854, when an assignor'could be a witness, but a party could not,—it appeared that one Davis had assigned his demand to the plaintiff, taking back from the latter an agreement which formed the consideration for the transfer, wherein the plaintiff agreed to pay Davis $50 for the claim when he collected the same. Upon the trial the plaintiff offered Davis as a witness. He was objected to, and excluded on the ground that the action was prosecuted for his immediate benefit. Ho other evidence having been offered, the plaintiff was nonsuited. On granting a new trial the court said: •

“ Davis clearly had a direct interest in the event of the suit. He had sold the cause of action for which the suit was brought to the plaintiff, and agreed that the payment of the price should depend upon the plaintiff’s success in collecting the demand. If the plaintiff never collected anything, he never would be liable to pay Davis anything. When he should succeed in collecting the demand, then, and not till then, would Davis have a right of action against him for the $50 which he had agreed to pay as the consideration of the sale. A clearer case of disqualifying interest at common law could scarcely be put. The witness had agreed that his right of action against the plaintiff should depend upon the plaintiff’s success in the suit. The witness must inevitably gain or lose by the result of the trial in which he is called to testify. But the Code has declared that no witness shall be excluded on account of his interest in the event of the suit. To sustain the ruling at the trial, it must appear that it is his suit, in which he is called to testify.' Of this there is no evidence. It is the plaintiff’s suit. He holds the demand upon which the action is brought by a valid transfer. He alone has the right to take the conduct of the suit, and, if successful, receives the fruits of it. He alone, if unsuccessful, is liable for the costs. In no proper sense of the term can it be said that the suit is prosecuted for the benefit of Davis. All that can be said is that, if the plaintiff recovers the demand in suit, he will owe the witness $50; if he does not, he will owe him nothing. Thus, the Avitnéss has an interest in the event of the suit, but has no interest in the suit itself. He cannot discharge the cause of action. He cannot receive the recovery, if it should be had. It is not prosecuted for his immediate benefit.”

To the same effect see Bridges v. Hyatt, 16 N. Y. 546.

The codifiers, in proposing the insertion in the Code of 1848 of sections 351 and 352, abolishing interest as a ground for’ excluding witnesses said:

“ The rule * * * Avhich excludes a witness who has an interest in the event of the action * * . * appears to rest upon a principle altogether unsound; that is, that the situation of the witness will tempt him to perjury. The reason strikes at the foundation of human testimony. The only just inquiry is this: Avhether the chances of obtaining the truth are greater1 from the admission or exclusion of the witness. Who that has any respect for the society in which he lives can doubt that, upon this principle, the Avitness should be admitted? The contrary rule implies that, in the majority of instances, men are so corrupted by their interest that they will perjure themselves for it, and that, besides being corrupt, they will be so adroit as to deceive courts and juries. This is contrary to all experience. In the great majority of instances the Avitnesses are honest, hoivever much interested, and in most cases of dishonesty the falsehood of the testimony is detected, and deceives none. Absolutely to exclude an interested witness is, therefore,, as unsound in theory as it is inconsistent in practice. It is inconsistent, because the laiv admits witnesses far more likely to be biased in favor of the party than he Avho has merely a pecuniary interest. A father may testify for his son; a child living Avith his father, and dependent on his bounty, may appear as his witness,—nay, as his only witness,—Avithout question. Is the immediate gain of a dollar, by the result of a cause, so potent to outweigh interest, while affection, consanguinity, dependence, are put down as dust in the balance ? ”

And see 1 Phil. Ev. (Cowen, H. & E.’s Notes) 25.

The opinion of the codifiers presents a powerful argument in answer to the defendant’s objection that the value df the testimony given by the assignor, a member of the learned profession of the law, must be measured in dollars and cents, according to the pecuniary interest which he has in an assigned claim of $60, for the exclusion of such testimony sought to be introduced for this purpose presents one of the alleged errors upon which the defendant insists the judgment in favor of the plaintiff must be reversed. We cannot subscribe to any such view. It would assume that every assignor, when a witness, has a price at which truth departs,—a contention unworthy of the attention we have given it.

The case was tried upon conflicting evidence, and the justice, as he had the right to do, believed the assignor, who was interested, in preference to the defendant, who was also interested. The justice saw the witnesses, observed their manner of testifying, and, aided by the inherent probabilities of the situation, was best qualified to judge of their credibility. The case comes within the rule laid down in Baird v. Mayor, etc., of New York, 96 N. Y. 567, 577, as to the effect which should be given by an appellate tribunal to the special adaptation of the trial court in weighing conflicting statements and inferences when there is evidence on both sides. See Coldwell-Wilcox Co. v. Sullivan, 3 App. Div. 361. As is said in Donohue v. Henry, 4 E. D, Smith, 162, 164:

“ It is always proper, where the credibility of a witness is involved, and there is anything to affect his testimony, to yield to the opinion of the court or jury before whom such witness is examined,- in preference to deciding as his testimony appears on paper. The personal appearance of a witness, the mode of testifying, the degree of candor with which his evidence is given, all have, justly, much influence in deciding the degree of credit to which he is entitled.”

In finding for the plaintiff for the performance of the work respecting which the negligence was charged, the justice necessarily decided that the counterclaim founded on such alleged negligence was untenable. Gates v. Preston, 41 N. Y. 113 ; Pray v. Hegeman, 98 N. Y. 358. Consequently, the counterclaim was properly dismissed.

The evidence sustains the recovery, the exceptions are without merit, and the judgment must be affirmed, with costs.

All concur.


author: O’BRIEN, J.

text:
    Thomas Baring et al. v. James M. Waterbury et al.

    (Supreme Court, Appellate Division, First Department.
    November 6, 1896.)
    Parol evidence—To show consideration of written contract.
    Parol evidence is admissible to show a consideration on a written contract, where the consideration is not expressed in writing.
    Appeal from trial term, New York County.
    Action by Thomas Baring and others against James M. Waterbury and another. From a judgment entered on a verdict directed by the court in favor of plaintiffs, defendants appeal.
    William N. Dykman, for appellants; Charles B. Alexander, for respondents.
   O’BRIEN, J.

—The action was brought to recover the sum of $123,649.86, as the balance due upon a banker’s sterling loan made by plaintiffs to the National Syndicate, a partnership composed of the two firms of L. Waterbury & Co. and William Wall’s Sons, and two corporations, Tucker & Carter Cordage Company and Elizabethport Cordage Company. The contract and the amount due thereon are admitted. The defendants, Waterbury and Marshall, who were the only ones served with a summons, or who appeared in the action, pleaded an accord and satisfaction ; and their contention upon this appeal is that, not only had they made it out by such evidence as they were permitted to produce, but they were erroneously prevented from introducing competent evidence which would have conclusively established a defense relied upon. This defense is thus pleaded:

“ That the plaintiffs cannot maintain this action for the reason that heretofore the plaintiffs entered into an agreement with other creditors of said syndicate above named, and with the firm of L. Waterbury & Co., whereby they agreed to look to the assets of the said syndicate for the payment of their debt incurred in the name of L. Waterbury & Co. on behalf of •said syndicate, and consented, further, to the carrying out of a plan whereby it was, among other things, proposed to assign the syndicate assets to certain trustees, in trust, to pay—First, the debts of the syndicate ; and, second, to adjust the interests of and distribute the surplus assets among the members of the syndicate. And thereafter the plan proposed in said agreement was in all respects carried out, including the assignment by said syndicate,.and said agreement operates by way of a composition with the members of said syndicate and said creditors, and also as an accord and satisfaction of the plaintiffs’ claims against the said syndicate, the said plaintiff receiving thereby a direct benefit by reason of its interest in the surplus assets derived from the sale of collateral securities held by the other syndicate creditors, and from all other assets to said syndicate belonging, as well as_ other benefits therein provided.”

It will be noticed that, while not asserting, in so many words, that the alleged agreement was in writing, nevertheless, this defense refers to and describes the writing entered into between the parties, to which reference will be made, and it leaves but little doubt that that was the agreement which, the defendants relied upon as establishing their defense of an accord and satisfaction. The defendants, however, claimed below, as they do here, that their effort was directed to showing that this written agreement was supplemented by an oral one, which was broader, and which supplied a provision, not-referred to in the written agreement, relating to the consideration which should go to Waterbury & Co. for their action in turning over certain assets to the trustees appointed thereunder, and in assisting in carrying out the agreement. If we assume that the answer permitted, in addition to the agreement in writing, oral proof of this other and supplemental provision-, a reference to the agreement and its purposes is essential to determine whether the defendants’ contention is sound. The-debt sued upon was a debt of the National Syndicate, which at the time the agreement was entered into had liabilities aggregating a little less than $3,000,000, and had assets valued at $4,000,000; and defendants’ efforts upon the trial were directed to showing that the transfer of these assets to trustees was the consideration for the accord and satisfaction.

Two paper writings were admitted in evidence, the first of which reads:

The firm of L. Waterbury & Co. transacted its own business and has certain creditors, who have become such in the course of the transaction of the business of that firm. The National Syndicate, composed of L. Waterbury & Co., William Wall’s Sons, the Tucker & Carter Cordage Company, and the Elizabethport Cordage Company, also have transacted business in the name of L. Waterbury & Co., who were its-managers. L. Waterbury & Co., therefore, as the representative of the syndicate,- has other creditors, wdio have become such in connection with the business of the syndicate. L. Waterbury & Co. have also a third class of obligations, arising out of endorsement or guaranties of the obligations of the National Cordage Company. It is now proposed to separate the assets of the syndicate from those of the firm, and to devote the assets of the syndicate to the payment of its debts incurred in the name of L. Waterbury & Co., and the assets óf the firm of L. Waterbury & Co. to the payment of the creditors of that firm. The third class of debts above referred to, namely, those incurred by the indorsement or guaranties- of the obligations of the National Cordage Company, will be taken care of by the reorganization of the National Cordage Company. For-the purpose of carrying out this plan it is proposed to assign-. the syndicate assets to certain trustees, among whom will be George 0. Magoun, Ernst Thalman, and Gustav H. Gossler, in trust, to pay—First, the debts of the syndicate; and, second, to adjust the interests of and distribute the surplus assets among the members of the syndicate. Also, in furtherance of this proposition, and to avoid a receivership of the firm, or of the syndicate, or of both, which would retard and hamper the reorganization of the National Cordage Company, it is proposed to turn over all the assets of the-firm of L. Waterbury & Co. to a New Jersey corporation for the purpose of liquidating the indebtedness proper of the firm of L. Waterbury & Co., as distinguished from the syndicate debt.

“We, the undersigned creditors of the National Syndicate, heretofore transacting business under the name of L. Waterbury & Co., consent to the carrying out of the foregoing plan.”

This paper was signed by all the creditors of the syndicate except five, namely, the National Bank of the Republic, Laden-burg, Thalman & Co., S. W. Boocock & Co., the New York Life & Trust Company, and the Farmers’ Loan & Trust Company. But testimony was offered tending to show that Boo-cock & Co. were Mrs. Waterbury’s agents, and that, in addition, she had purchased the claim of the New York Life & Trust Company and of the Farmer’s Loan and Trust Company, and had assented to the agreement; and that the National Bank of the Republic had written a letter to one of the .attorneys engaged in the transaction accepting the proposition of settlement. It is conceded that the firm of Ladenburg, Thalman & Co. did not sign. It was executed by the plaintiffs conditionally, “ to be binding when signed by all the creditors of syndicate.” It being conceded that all did not sign,' even though we assume that the paper in question was not the whole agreement, still, whatever the agreement was, it was subject to the condition affixed to it by plaintiffs. Though signed by all, this would not vary the stipulation attached to plaintiffs’ signature. Thus, at the outset, there is an insuperable obstacle in the way of establishing the defense. But, as we understand it, the defendants, while admitting the condition annexed to plaintiffs’ signature, insist that they were induced to turn over property to the trustees for the syndicate, and thus, having changed their position as the result of what was said by the plaintiffs, that the latter are estopped from denying that the settlement did so operate as an accord and satisfaction.

The other paper produced in evidence was the deed of trust, by which the syndicate transferred to one of the plaintiffs and three other persons, named as trustees, all of the assets of the syndicate, in trust for the following purposes:

“ First. To pay the debts of the said syndicate to others than the members of said syndicate, and to that end to make .such adjustment, compromise, extension, and settlement of said indebtedness, or any part thereof, and of any liability or liabilities of said syndicate, as said trustees may think best and in their discretion and best judgment if and when and in such amounts as they deem desirable to convert the said assets, into money and apply the same or the proceeds in settlement or compromise and satisfaction of said indebtedness, or in payment of the said indebtedness of the said syndicate in full, if' they think best, and if assets are sufficient therefor, and in case' said assets are insufficient therefor then to so apply the same or the proceeds .thereof pro rata. In case any of the creditors of said syndicate shall have specific collateral as security for the indebtedness of said syndicate to such creditor, the said trustees shall make such arrangements as they deem best with said creditors in pursuance of the purposes hereof,, either redistributing, transferring, diminishing, or increasing the said specific collaterals, or by repledging, rehypothecating,, or remortgaging the same, dr otherwise, as in their discretion they deem best. Second. After the payment of said indebtedness of said syndicate, then to pay the debts of said syndicate to its members, and to that end to apply the residue of said assets, or the proceeds thereof, to the payment of the several sums to which the parties to said syndicate may respectively be entitled under and by the terms of 1 Exhibit A,’ less, however, such sums as any of the said members may have heretofore received upon account. Third. To distribute the surplus, if any, of said assets, or the proceeds thereof, remaining after the execution of the preceding trusts to the members of said syndicate, in the proportion in which said members shall then respectively be entitled thereto.”

It was insisted below, as here, that, as the consideration which moved the defendants to assent to this plan, and make these transfers and assignment, is nowhere stated in the writing, they were entitled to show by parol the entire agreement between the parties, and thus by oral testimony-to fill out and show the complete contract. As already intimated, the answer in no way refers to any other or different contract than that, contained in the writings, and the testimony offered was not directed to showing any other or different agreement. The appellants insist, that the paper writings were to be legally construed as a composition, and, so far as Waterbury & Co. were concerned, as an accord and satisfaction; and, the trial judge not having assented to this construction,.—in which we think he was clearly right,—the defendants sought to strengthen their position by oral testimony which, either by way of adding a new provision to the agreement, or by way of estoppel upon the plaintiffs, would make out their defense.

Counsel contends that the true construction of the writings is that the consideration which Waterbury & Co. -were to receive for turning over their assets, together with inducingWslerbury’s wife to purchase the claims, and to part with valuable real estate, which was turned over to the trustees,. was their release from the syndicate indebtedness. There is no doubt that it was thought, and in the contemplation of all those interested, that the result of the plan proposed would be to get rid of Waterbury & Co.’s obligations; because, as shown, the assets which were turned over were valued at $4,000,000, whereas the indebtedness was less than $3,000,000, and the agreement, instead of providing for releasing Waterbury & Co., was specific in providing for turning over to the syndicate the surplus which it was expected would be realized after the payment of all indebtedness. And we think that the failure to realize the expectations, which were shared in by all, that these assets were more than sufficient to pay all claims, prevented the success of the agreement, and led to the present suit. Undoubtedly, if, in addition to what is in writing, the evidence which the defendants offered had been directed to showing that there was a supplemental agreement relating to the consideration which Waterbury & Co. were to receive for turning over their assets, it would be admissible; or, if the effort of the defendants had been directed to showing that, as the result of representations made by the plaintiffs, they had been induced to part with valuable assets, and thus change their position, there would be some ground for claiming an estoppel. Most of the questions sought to elicit the view which the plaintiffs or their counsel took of the agreement, or their interpretation or construction of it; and thus nearly all the oral evidence offered ivas by way of interpretation of the paper, and directed to showing the sense in which the defendants accepted it, or how they or the plaintiffs or somebody •else supposed or said it would operate. While, undoubtedly the law is that, where the terms of a promise admit of more senses than one, it is to be interpreted in the sense in which the promisor had reason to suppose it was understood by the promisee” (White v. Hoyt, 73 N. Y. 505), no showing Avas made upon the trial for the application of this rule. Anything less than direct representations made by the plaintiffs, or by persons AArho, it Avas claimed, had induced the defendants to sign and carry out the Avritten agreement, could not ,be competent to affect or destroy the validity of the agreement; nor could mere conversations, no matter between whom held, as to individual vieAVS concerning the construction or interpretation of the contract, be material or competent, Avhere the contract itself was clear and unambiguous. In the latter case, undoubtedly, the construction which the parties themselves would place upon the language used and their conduct, if mutually regulated by such construction, would go a long Avay Avith the court in determining Avhat Avas the true interpretation. We do not find, hoAvever, any ambiguity in the language employed, and therefore there is no ground for any other rule of interpretation than that which -requires that the language shall be given its ordinary and well-defined meaning.

A question, hoAvever, is made Avhether the Avritings contain the entire agreement; and the appellants insisting that they do not, assign as error the refusal to permit them by competent evidence to show that fact. In addition, there were certain rulings made, excluding evidence, which, we think, were erroneous. It has long been the law that, in the absence of any consideration expressed in an agreement as moving to one who is a party thereto, it is entirely competent to prove by parol what the consideration was, although the agreement itself was in writing. Here, according to the plan of reorganization, and the marshaling of the debts and assets which were owned by Waterbury & Co., or which they could control, the part which they were to take and what they were to do were defined by the contract; but it is silent upon the question of what they were to receive, and they attempted upon the trial to prove this in several ways, but in each direction they were stopped by the rulings excluding the evidence. The error into which the learned trial judge seems to have fallen in this regard was no doubt due to the fact that he felt constrained by an erroneous construction put upon the answer by another judge at trial term. The latter assuméd that there was no defense of accord and satisfaction, and it was not passed upon; but what was passed upon was the question as to the results that would flow if the trustees sold the collaterals which were turned over to them under the trust agreement without giving notice of sale. As we have seen, however, this was a mistake, because, in addition, an accord and satisfaction was properly pleaded 'in the answer. The questions put to the-members of the firm of Waterbury and Co. as to what Magoun stated would be the consideration, the latter being dead, were incompetent ; but the rulings to which we refer were upon the questions asked of other witnesses, which were entirely competent and relevant, and which were directed to showing the consideration which moved Waterbury and Marshall to assent to the plan and make the transfers and assignments, and which is nowhere stated in the writings. When we recall that there is no writing recording the general agreement between them and their creditors on the one part, the syndicate creditors on another part, and the creditors of the National Cordage Company on the other part, a situation is presented in which oral testimony was competent to show, if it could be done, the entire agreement. Such testimony, of course, could not be used to vary or contradict what was in writing, but would be available in showing -what was the entire agreement, and whether that included as the consideration the discharge of Waterbury & Co. from their debts.

Tor the reason, therefore, that we think no sufficient opportunity was afforded Waterbury & Co. of establishing, if they could do so, the defense, which they pleaded, of an accord and satisfaction, the judgment -must be reversed, and a new trial ordered, with costs to the appellants to abide the event.

■ All concur.


author: INGRAHAM, J.—The

text:
    Peter Bryer v. Catherine Foerster.
    (Supreme Court, Appellate Division, First Department.
    November 6, 1896.)
    Damages—When not excessive.
    A verdict for §6,000 for injuries to a workman who was permanently disabled thereby is not excessive.
    Appeal from trial term, Yew York County.
    Action by Peter Bryer against Catherine Foerster, as administratrix of Joseph Foerster, deceased, for personal injuries. A judgment was entered on a verdict in favor of plaintiff, and defendant appeals.
    George W. "Wingate, for appellant.; Sumner B. Stiles, for respondent.
   INGRAHAM, J.—The

plaintiff was working as a helper to one Frederick Selser, who was a roofer, engaged in roofing a building in the city of Brooklyn; and, while at work upon a scaffold outside of the building, the scaffold broke, and the plaintiff ivas injured. There ivas no dispute but that the scaffold was improperly constructed, and that the cause of its breaking was the use of a joist in which there ivas a large knot. There was evidence to justify the finding of the jury that this scaffold was erected by some agent of the defendant’s intestate, who was the plaintiff’s employer, and that neither the plaintiff nor Selser had anything to do with its construction. Evidence was introduced by'the defendant which tended to show that the plaintiff and Selser constructed the scaffold, and selected the joists, although the defendant’s intestate had supplied proper material for the erection of the scaffold ; but the fact that the scaffold was erected by plaintiff or Selser was denied, and there ivas evidence that required the submission of that question to the jury. It seemed that Oscar Foerster, the son of the defendant’s intestate, was in charge of the work, hired the men, and had general charge of the construction of scaffolds upon the building; and there was evidence tending to show that he constructed the scaffold in question. Oscar Foerster testified that he was foreman of this job, and had Selser and the plaintiff, with other men, under him. He testified that he told Selser and the plaintiff that, if any scaffold was to be built, no lumber was to be used but his own, and no scaffold was to be built unless he (Oscar Foerster) was present; that it 'ivas improper to use such a joist to build such a scaffold ; and that the joist that was used was not part of his lumber. The witness further testified that he did not give direction for the building of this scaffold at all, and did not build it himself. The plaintiff’s story was corroborated by another witness, who testified that he saw Oscar Foerster build the scaffold ; and several witnesses of the defendant testified expressly that plaintiff and Selser built it.

We have carefully examined the testimony, but do not think that it was so clearly proved that plaintiff built this scaffold, or had anything to do with its construction, as to justify us in reversing the judgment, on the ground that it is against the weight of evidence. While the testimony of the plaintiff is rendered doubtful by his mental condition, and while Selser’s testimony is somewhat impeached in consequence of contradictory statements made by him prior to the trial, both oral and in writing, we do not tliink that we would be justified in saying that the finding of the jury that the scaffold was not built by plaintiff or Selser, but was furnished by the defendant or his agent, Avas so clearly against the weight of evidence as to justify us in reversing the finding of the jury. The question was fairly submitted to the jury, the learned judge instructing them that if they believed that the scaffold Avas constructed by the son of the defendant, either alone or Avith the defendant or some other person, and that the scaffold fell because of this defect in one of the joists, then the defendant must be regarded as responsible for the falling of the scaffold, but, if “ there Avas negligence on the part of his son in constructing it, that negligence the law imputes to the defendant himself. If, on the other hand, the account given by the defendant’s Avitnesses is true, and the jury should find that this scaffold was erected by Selser, and by the plaintiff, on the morning of the day Avhen the accident happened, then, of course, the defendant cannot be regarded as responsible for the falling of the scaffold, and that would be an end of the plaintiff’s case.” Under these instructions, the jury must have believed that the scaffold was constructed by the defendant’s son, who was his foreman, and in charge of the work. In that case the jury would have been justified in finding that the defendant was negligent in the performance of the duty that he owed to the plaintiff. The question was submitted to the jury by the learned judge in a charge to which no objection or exception Avas taken, and we think the verdict Avas sustained by the evidence. There is evidence that Oscar Foerster Avas in charge' of the work as the representative of the defendant’s intestate, and that in erecting this scaffold for the use of the plaintiff and the defendant’s intestate, he was acting as the representative of the defendant’s intestate, and not as a felloAV-Avorlcman of the plaintiff; and his negligence in providing for the plaintiff a proper and safe place to work Avas the negligence of the defendant’s intestate. There Avas no exception taken by the defendant to the admission or rejection of testimony to Avhich our attention has been called, and, upon the Avhole case, we think that no error Avas committed upon the trial which calls for a reversal of the judgment.

We do not think that the damages were excessive. The amount of the verdict aauis §6,000. It seems to haAm been quite satisfactorily established that plaintiff Avas, in consequence of the result of this injury, permanently disabled. As to what effect the blow upon the plaintiff’s head had in causing this injury it was a question for the jury, and it cannot be said •of such an injury as plaintiff sustained that the amount of the verdict was excessive.

Upon the whole case, we do not feel justified in interfering with the verdict. The judgment appealed from must therefore he affirmed, with costs.

All concur.


text:
    Annie T. Murray v. Forty-Second St., M. & St. N. Ave. R. Co.
    (Supreme Court, Appellate Division, First Department.
    November 6, 1896.)
    Street railroads—Injury to persons on track—Evidence.
    Negligence on the part of a street-car driver in failing to stop his car before striking a person lying on the track is not shown where the person could not be seen until the car was very close to him, and that the driver, on seeing him, immediately put down his brake.
    Appeal from trial term, Flew York County.
    Action by Annie T. Murray, as administratrix of Martin Murray, deceased, against the Forty-Second Street, Manhattan-ville & St. .Fichólas Avenue Railroad Company to recover damages for the death of plaintiff’s intestate. From a judgment for $2,500 damages and $278.24 costs entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.
    Alden S. Crane, for appellant; Benjamin Baker, for respondent.
   O’BRIEN, J.

—This action was instituted by Annie" T. Murray,-as administratrix, etc., against the defendant, to recover damages for causing the death of the intestate by its negligence. Upon the trial it appeared that plaintiff’s intestate was struck by one of defendant’s cars on the Western Boulevard, between Sixty-Fourth and Sixty-Fifth streets, at a quarter to 12 o’clock on the night of July 29, 1893, and sustained injuries that caused his death on the following day. The manner in which these injuries were received were detailed by two witnesses produced by the plaintiff, who claimed to have seen the accident; one being a saloon-keeper, and the other his assistant. They testified that while sitting on the saloon steps, about 150 feet from the place of the accident, their attention was attracted by a. cry, and they ran towards a car which was coming north; that they saw the driver put on his brake, and bring the car to a stop within its length, and when they reached the car the intestate wras lying with most of his body under the car, between the front and rear wheels; that his legs were •separated, the feet pointing to the front of the car, the front wheel between his legs, close up to his body, and that at this thne he was uninjured ; that while they were trying to get Murray from under the car the passengers and "bystanders, pushed the car back a few inches, the forward wheel running-up on Murray’s body, thus inflicting the injuries which caused his death. With this account of the accident the plaintiff' seemed satisfied, and rested, and thereupon a motion was made to dismiss the complaint, which was denied. .As there was nothing in this evidence tending to show negligence upon the part of the driver, or freedom from contributory negligence upon the part of the injured man, the motion should have been granted. This is practically conceded by the respondent, because on this appeal she abandons the story or version given by her own witnesses, and insists that upon the evidence adduced by the defendant there was sufficient to present the question of defendant’s liability to the jury. This reliance is mainly upon the evidence of the witness Meisner, which may be briefly summarized : He testified that' on the night in question he was standing bn the front platform of the car, smoking a cigar, and that, though it had been raining that day, the evening was pretty clear, but he saw along the boulevard in different places small pools of water, the result of the rain ; that, after passing Sixty-Fourth or Sixty-Fifth Street, he saw a dark object lying between the car tracks, and thought it was water, but upon getting closer he saw it was the form of .a man; that he was lying with one leg 'on the outside of the track, the body and one leg on the inside of the track, and the head towards the upper part of the street; that the horses shied as they got within a few feet of the object, and as the horses got to one side he noticed what it was ; that he cried out, “ ‘ There is a man ! ’ but not exactly hollered, but I spoke to the driver ; ” that the gentleman who was on the platform with him noticed it at the same time. “ As far as I can recollect, the driver put down his brake immediately, but had not time enough to stop-the car in running up against the body. I don’t know whether-the car—at least the wheel—passed over his body or not. To-that I cannot swear. As far as I can remember, the body lay in front of the front wheel. * * * Beyond putting on tliebrake and holding the horses in check, I could not exactly say what the driver did. He was on the car when I got off. He was holding the brake himself. The words were given, ‘ Push the car back.’ It was pushed back. I can’t remember exactly whether he was taken out after or before the car was pushed back. * "x" * I saw the man lying on the track before the wheel struck him. I can’t say whether it was the car struck the body, or whether it was the motion of the brake that gave* the car a jerk.” This witness was unable to determine just, how far the car was from Murray when he first observed him lying upon the track; but his testimony can be read so as to-make it consistent with that of the driver and another witness-examined by the defendant,—that by reason of the trees that skirt the boulevard and throw a shadow upon the track, and the condition of light that prevailed on that evening at the time the accident occurred, neither he nor the driver nor the other witness saw, or couldosee, the object until the horses were almost to it, when they shied, and the driver immediately put on brake, and checked the speed of the car. And, while the car reached Murray, it is doubtful' whether the wheels, or any portion of the car, had then struck him; none of the witnesses testifying positively as to that fact, and there being testimony from which the inference could be drawn that the car ran to the place where the body was lying without the wheels having touched him. But whether the wheels touched him or not, or whether the injuries were caused by the passengers and others subsequently pushing back the car upon Murray as he lay on the track, is entirely immaterial, because, taking the testimony of the witness Meisner, upon whom the respondent relies, it is shown beyond question that the driver was not guilty of negligence which in any way caused the injuries. lie could not have anticipated that at that time of night any one would be lying upon the track; and all agree that as, soon as his attention was called to that fact—whether by the voice of Meisner or by the shying of the horses—he did all that lay in his power to avert the injury by putting on the brake and stopping the car within its own length. The theory upon which the learned trial judge seemed to proceed was that, while there was no negligence in the fact that the driver did not sooner see Murray lying on the track, as soon as he did or should have seen him he was bound to use every reasonable effort to prevent injury to him. But the uncontradicted evidence is that this is just what he did, and there is no evidence from which a contrary inference can be drawn. This theory upon which to predicate defendant’s liability must, therefore, equally with the others advanced, be disregarded, for the reason that, reading the record, we find an entire absence of any evidence to justify the jury in inferring that the negligence of defendant’s driver was the sole cause of the injuries from which Murray died. This being the condition of the record, the motion made at the end of the entire case to dismiss the complaint should have been granted.

We think, therefore, that the judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.

All concur.