author: O’Brien, J.

text:
    James W. Holloway, Pl’ff, v. Franklin H. Delano et al., Def'ts.

      (Supreme Court, Circuit, New York County,

      Filed October, 1891.)

    Easements—Deed.
    Where a deed hounds the land conveyed by a previously established and existing road ‘or street, such grant does not create a private easement in ■favor of the grantee. The acceptance of such a deed is an acceptance of the road or street as a public highway, and the grantee takes only an easement in common with the public which the legislature may, at any time, terminate.
    Ejectment to recover possession of certain parcels of land.

      James A.Deering, for pl’ff; Fvarts, Choate & Beaman (George De Forest Lord, of counsel), for def’ts.
   O’Brien, J.

The plaintiff brings four actions in ejectment to recover possession of certain parcels of land, within the lines of the old Bloomingdale road (closed under the act of 1867, chapter 697), between Eighty-ninth and Ninetieth streets, Ninetieth and Ninety-first streets, Ninety-second and Ninety-third streets, and Ninety-fifth and Ninety-sixth streets.

The plaintiff claims title thereto as one of the heirs at law of Charles Ward Apthorp, who, in the years 1762 and 1768, acquired title to a large tract or plantation between what is now Central Park and Hudson river and Eighty-ninth and Ninety-ninth streets, containing upwards of 210 acres and embracing the lands within the lines of the road.

The defendants, besides denying plaintiff’s ownership, assert title under the act of 186-7, as owners of the abutting lands, and further claim that even if the fee to the lands are owned by plaintiff they are subject to a perpetual easement in favor of defendants as such abutting owners.

The facts are so voluminous and so fully set forth in the record, and every question of law applicable thereto has been so elaborately discussed in the able briefs of counsel, that it remains for me but to state the conclusions, and briefly to give the reasons-upon which such conclusions are based.

Unless those under whom plaintiff claims- conveyed the fee or some easement in favor of those under whom defendants claim,, then, upon the closing of the Bloomingdale road, the fee in the lands embraced within the roadway reverted to the heirs of Charles Ward Apthorp. This necessarily results from the extinguishment of the public easement by the closing of the road and the-reverting of the lands “ in full and unqualified dominion ” to the-original owners and their heirs.

In other words, “ the entire and exclusive enjoyment reverts to the proprietor of the soil.” 15 Johns., 452.

It is not by these expressions to be understood that any private-rights or easements would be thus destroyed, but only that upon such closing the owner of the fee takes it free from any lessening of his absolute ownership and control as the road in its public character created.

If the owner of the fee had by contract vested a private easement in a third person, which, by its terms, was not made dependent upon' the continuance of the public rights, the private easement would still subsist or exist in favor of such third person .after the closing of the street or road.

The questions, therefore, to determine are, did the defendants acquire a fee in the lands, or, if this is decided against them, did they acquire any private easements which survived the extinguishment of the public easement upon the closing of Bloomingdale road ?

It is evident that a solution of these questions must depend entirely upon the construction to be given to the deeds from the children and heirs at law of Apthorp to Clarkson, Jauncey and Shaw and others introduced in' evidence.

Reading these deeds in the light of the decisions and the rules ■of the construction therein given, I am of opinion, whatever the earlier cases may have decided, that English v. Brennan, 60 N. Y., 609; White's Bank v. Nichols, 64 id., 65; and Kings County F. Ins. Co. v. Stevens, 87 id., 287, are in favor of plaintiff’s contention that there was no grant to the defendants’ grantors of the fee in the roadbed of Bloomingdale road.

The other question, as to whether or not a private easement was granted, is a much more difficult one. Such an easement, it is claimed, arises out of the mere fact of the conveyance of lands abutting on a highway.

Leaving out of consideration, however, cases like Darker v. Beck, 32 N. Y. State Rep., 193; Wheeler v. Clark, 58 N. Y., 271; Kings County Ins. Co. v. Stevens, 87 id., 287, and 101 id., 411, in which the easements claimed were rights of way over lands not immediately in front of, but contiguous to, the dominant estate, in which a view more favorable to plaintiffs is taken, and considering only cases where the easements involved were those of air, light and convenience of access, here, also, upon the facts presented, I think plaintiff is supported by the weight of authority.

There is a line of cases, such as In the matter of Eleventh Avenue, 81 N. Y., 437, and In the matter of Ladue, 118 id., 213 ; 28 N. Y. State Rep., 821, wherein the grants were made by one who in laying out a plot of ground into lots, streets, etc., and bounding such lots with reference to streets thus laid out or contemplated before the same were legally accepted or dedicated as public highways or streets, in which it was held that, even though the fee did not pass, an easement was created in such street in favor of such lot. owners, which even the subsequent closing of the •street could not deprive him of.

There are other cases again where the terms of the grant created, as against a grantor, not only a public easement but also a private ■easement in the owners of the abutting land. Such a case is De Peyster v. Mali, 92 N. Y., 267.

I can find no case, however, where as here there was an existing road and the grant was bounded by such road, that such a grant created a private easement in favor of an abutting owner. In laying down this broad statement I have not overlooked the elevated railroad cases in which our courts, to protect property owners from an unjust and unlawful invasion of their property rights, have recognized the easement which, in addition to the public, abutting owners had in the streets. There the question was between private owners and trespassers who, without making-compensation therefor, would destroy private rights. There the question did not arise after the lawful closing of a thoroughfare, but related to the impairment of its uses while open. Were the question here as to the right of abutting owners to compensation, I am inclined to think that the principle of the elevated railroad cases might be applicable. Here, however, the street has been closed, the rights of the respective parties to compensation for the closing have been determined and the awards paid. Here, moreover, the question arises between grantor and grantee after the road had been closed, and these rights it seems to me are to be determined solely by the terms of the grant. Where by the grant-private easements have been created, these cannot, in favor of a-grantor, afterward be destroyed. In the absence of express words-in the grant, this I take it to be the distinction as to when such, easements will be presumed to exist

That where a public road does not exist, but a grantor for the purpose of dividing his property into lots lays out streets either physically or upon a map, and thereafter sells such lots, referring-in the description to such streets, that then a private easement in favor of the grantee of the lots-is created. In such a case, as said in White's Bank of Buffalo v. Nichols, 64 N. Y., 73: “The general rule is,- that where the owner of land in a city lays out a street through it, and sells lots on each side of the street, the public; have an easement of way or right of passage, although, it may not become a public highway in the ordinary sense of that term, until the dedication is accepted and the street adopted by the corporation, and the grantees of the lots are entitled as purchasers to-have the interval or space of ground left open forever as a street, and to the right of using the way for every purpose that may be-usual and reasonable for the accommodation of the granted premises. Neither the corporation of the city nor the state authorities, nor the grantor, can do.any act to impair this right or restrict the-grantees in the enjoyment of it’.’

On the other hand, however,.as said in King v. Mayor, 102 N. Y., 175, ‘‘merely bounding premises by a public highway for purposes of description, and where it is referred to as any fixed mark or monument might be, is very different from selling by-reference to. a map or plat on which the grantor has laid out streets; and made out a dedication and exposed himself to the equities o£ ,an estoppel.”

Speaking generally of the four cases, the boundary is by “the.Bloomingdale road.” This general description does .not. create a new street or private road, or in terms grant any private-right of way or ..easement in addition to that already possessed by the public for over 100 years. The deed and map.referred to are-simply a recognition of an . established public highway,- and the acceptance of the deed by Vanderbilt-and. Jauncey, bounding, the land on this established public road, was an acceptance of it as such public highway, and as every highway is held or enjoyed subject to public necessity and authority, they must be assumed to have taken simply an easement in common with the public, which the legislature might at any time terminate, and after which no further additional private right existed in them, because not granted to them.

My conclusion, therefore, is that defendants’ easement was qualified, being one in common with the public in the land as a public highway, subject to the right of the public to extinguish.

These views of the law and facts necessitate that I should direct a verdict in favor of plaintiff that he have possession as prayed for in the complaint


source: Caselaw Access Project

author: Macomber, J.

license: Public Domain

text:
    In the Matter of a Judgment Recovered by Ezekiel Fleming, Resp’t, v. Albion W. Tourgee et al., and Emma K. Tourgee, a Third Person Named in Supplementary Proceedings in that Action, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Supplementary proceedings—Third party order—Contempt.
    A third party order, though supported by an insufficient affidavit, is not void, and it is incumbent on the party proceeded against to obey it or take proper steps to set it aside. He cannot treat it as a nullity.
    2. Same.
    It is not a sufficient excuse for the party proceeded against to neglect obedience to an order of the judge that he did so under advice that the same was not supported by a sufficient affidavit, so long as the proceedings before the judge give him jurisdiction of the subject matter and of the person proceeded against.
    Appeal from an order of the special term held in Erie county, dated September 1, 1890, denying the motion of Emma K. Tourgee to set aside an order directing that she be confined in the Chautauqua county jail for contempt of couyt in failing to-appear before the special county judge of Chautauqua county, until she should pay the expenses of such contempt proceedings, amounting to $35.00, and until she should voluntarily appear before a referee to answer such questions as might be put to her touching her indebtedness to the judgment debtor, her husband, Albion W. Tourgee.

      Adelbert Moot, for app’lt; S. A. Barlow, for resp’t
   Macomber, J.

This is an appeal from an order made by the-special term denying the application of Emma K. Tourgee to set aside an order made by the special county judge of Chautauqua county, declaring the appellant in contempt, in failing to appear for examination under allegations that she had personal property exceeding ten dollars in amount in her possession, applicable to a judgment against her husband, Albion W. Tourgee.

The order of the special county judge, dated February 22, 1890, required the appellant to appear before a referee for examination as a third person, on the ground that she had personal property belonging to the defendant, Albion W. Tourgee, or was indebted to him. in a sum of money exceeding ten dollars. On the return day the appellant failed to appear before the referee, and her default was properly noted and returned to the special county judge. An order was thereupon made for the appellant to show cause why she should not be punished for her disobedience of the order. On the return day the appellant appeared at the time and place mentioned; but on account of engagements elsewhere the special county judge did not appear, and, consequently, the proceedings went for naught. Such proceedings, however, were revived by another application to the same judge, explaining the failure to proceed upon the first order and to show cause, and it was upon the return of the subsequent order, properly served, that the appellant was adjudged guilty of contempt, and was required to pay a fine of $35.00, being the costs of such special proceedings, and to appear for examination before a referee on a day named; and in default thereof to be confined in the county jail until she complied with the order or was discharged by the court.

The motion made at the special term, the order entered upon which is the subject of the present appeal, was made for the purpose of procuring the order for the appellant’s original examination to be set aside, and also to vacate the order adjudging her guilty of contempt. The notice of motion was that the orders of the special county judge be set aside upon the merits, and because they were irregular for the reason that the appellant had been adjudged guilty of contempt without any proper or legal proof of guilt being produced before the judge; and secondly, because she had once appeared at the time and place appointed by the judge, ready and willing to show cause why she should not be adjudged guilty of contempt; and thirdly, on the ground that the orders of the special county judge were void and were made without juristiction of the subject matter or of the person f also upon the ground that the affidavit for her examination furnished no fact upon which to base the orders and proceedings already mentioned.

It will be noted that there was no application made to the special term to be relieved from the orders of the special county judge upon the ground of favor or of excusable neglect to appear for examination. On the contrary, it is distinctly averred in the moving affidavit that the failure of the appellant to appear before the special county judge to show- cause why she should not be punished for contempt for disobedience of the order for her examination was deliberate, and, as is claimed, was done under the advice of counsel. This refusal on the part of the appellant to appear in pursuance of the command of the second order seems to be placed wholly upon the groúnd that the original affidavit for her examination as a third party in the proceeedings supplementary to execution was defective, in that it alleged on information and belief only, without giving the sources of such information, that the appellant was indebted to the judgment debtor, or had property- of his which she failed to apply upon the judgment

Under § 2441 of the Code of Civil Procedure the judgment creditor was entitled to an order requiring the appellant’s examination “ upon proof, by affidavit, or other competent written evidence, to the satisfaction of the judge,” etc.

The facts being stated on information and belief only, in the affidavit for her examination, were insufficient. to support the order made thereon, and such order would have been necessarily set aside on application to the judge who granted it But no such application was made. The order, however, though supported by an insufficient affidavit, was not void; and consequently it was incumbent upon the appellant to obey the same, or to take proper steps to have it vacated. She could not treat it as a nullity. ... She should have appeared before the referee in pursuance of the terms of the order, or should have taken some direct measures to be relieved of its obligations. Had the special county judge, if such application had been -made, refused to vacate the order, her remedy would have been perfect on appeal to this court. Consequently, having neglected to appear before the referee, the county judge had power to punish her for the contempt under § 2457 of the Code. Within the provisions of this section, it is not a sufficient excuse for the party proceeded against to neglect obedience to an order of the judge, upon the ground that he is advised that the same was not supported by sufficient affidavit, so long as the proceedings before the judge gave him jurisdiction of the subject matter and of the person proceeded against, as they clearly did in this instance.

The order appealed from should be affirmed.

Order appealed from affirmed, with ten dollars costs and disbursements.

Dwight, P. J., concurs; Lewis, J., not sitting.


text:
    Hannah L. Hazard et al., App’lts, v. Cordelia Birdsall et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    Bell of particulars-—Partition—Will.
    In an action brought under § 1537 of the Code, by heirs to partition real estate notwithstanding an apparent devise to defendant B., the complaint alleged that the alleged will was not duly executed; that the testator was not of sound mind and was induced to sign by the undue influence of said B. Defendants served an answer and also a notice of motion for a bill of particulars, which was granted, requiring plaintiffs to state the particulars in which the execution of the will is alleged to be defective, and also any particular or special act or false representation which is relied oh as establishing undue influence. Held, that the order for such bill was improperly granted, as it calls for the evidence on which the plaintiffs will rely to prove their case.
    Appeal from an order of the Monroe special term granted April 2, 1891, and entered April 4, 1891, requiring the plaintiffs to furnish a bill of particulars of the alleged defective execution of the last will of Benjamin Birdsall, deceased, which bears date the 30th day of November, 1889, and admitted to probate by the surrogate of Monroe county January 2, 1891, as a will of both real and personal property.

      C. J. Browning, for app’lts; A. E. Sutherland, for resp’ts.
   Macomber, J.

This action is for the partition of certain lands described in the complaint of which one Benjamin Birdsall died seized on the 22d day of April,-1890.

The plaintiffs are the daughter and grandson of the decedent, and the defendant Cordelia Birdsall is his widow. The claim made by the plaintiffs is, that they are entitled to a portion of the Teal estate as tenants in common with other parties named, although the deceased left a will by which the land was apparently devised to the respondent, Cordelia Birdsall. The action in form is under § 1537 of the Code of Civil Procedure, which permits persons claiming as joint tenants or tenants in common, by reason of being heirs at law of the person who died in possession of the real property, to maintain an action for the partition thereof, notwithstanding an apparent devise thereof to another by the decedent. By the terms of this 'section, it is incumbent upon the plaintiffs to allege and establish that such apparent devise is void.

The allegations of the plaintiffs are, so far as is material to this appeal, “ that although the said paper purports to be the last will and testament of the said Benjamin Birdsall, and by its terms devises or bequeaths the said real estate or the proceeds thereof to the parties above mentioned, the said apparent devise and bequest, together with the power of sale contained in the said alleged will, is void, and said alleged will is void as to said property for the reason that the said paper and instrument was not ■duly executed by the said deceased as his last will and testament, .and the alleged execution thereof was not his free and voluntary .act; and that when the said paper purports to be executed the said deceased was not of sound mind, memory and understanding, and that he was incompetent by reason of mental weakness, bodily infirmities and unsoundness of mind- to make a will, and that the said Benjamin Birdsall was procured to put his signature to the said paper and to execute ' the same by the defendant Cordelia Birdsall through improper and undue influences brought to bear upon him by the said Cordelia Birdsall, and the same was not the free and voluntary act of said deceased.”

The order made upon the defendants’ motion required the plaintiffs to furnish to the defendants’ attorneys, within twenty days, .a bill of particulars setting forth: First. The particular or particulars in which the execution of the will is alleged to be defective. Second. Any particular or special act or false representation, if there be any such act or false representation, which is relied on as establishing undue influence.”

' ¡No claim is made but that the complaint is precise and aecuTate enough to enable the defendants to answer its allegations intelligently ; for simultaneously with the service of the affidavits .and notice of motion, an answer, putting in issue the principal allegations of the complaint, was served. While it is true that under § 531 of the Code of Civil Procedure the court is not in terms restricted in granting motions for bills of particulars to cases where the motion is made before answer, .yet the fact that a defendant is able and willing to join issue upon the allegations of the complaint is a circumstance, in actions other than those upon an account, to be considered in determining the question whether or not the particular information desired is, in reality, needed by- the defendant. ■

■ Undoubtedly the office of a bill of particulars is to amplify the pleading so as to specify clearly the claim or defense set up, and to limit the generality of a pleading, thus preventing surprises at the trial. But it is not in all cases that a bill of particulars can be of special service to parties, so long as the pleading itself is definite and certain, and to which the opposite party has voluntarily answered before notice of motion. In the case as presented on this appeal, it seems as if the demand actually made ■ by the notice of motion, and by the order, was that the plaintiffs disclose to the defendants the evidence upon which they intended to rely at the trial. This certainly is not the office of the bill of particulars. Though the language of the Code is general, and applicable to all civil actions, yet in actions outside of those upon an account, where the items thereof are usually directed to be served when not contained in the pleading, the granting of the order is not a matter of course. The power must be exercised in each case according to the nature of the action and the character of the inquiry to be instituted upon the trial thereof. It appears to us that the first direction contained in the order appealed from requires the plaintiffs to produce the legal argument showing wherein the will was not properly executed;- and the second, the evidence upon which they rely to establish uridue influence; but it is not the office of a bill of particulars to compel a disclosure of these matters. In the case of Bennett v. Wardell, 43 Hun, 452 ; 6 N. Y. State Rep., 767, which was an action, like the one before us, for the partition of real estate, and where the complaint alleged that the defendant therein claimed an interest in the property under a devise of a will which was void, it was held that the court should not order a bill of particulars specifying the grounds upon which it was claimed the devise was void, and accordingly reversed the order of the special term granting the motion for such bill.

Moreover, we do not understand that fraud is charged in the complaint against the apparent devisee, but the order requires the disclosure of any acts of .'raud relied on which may have resulted in making a case of undue influence. In this respect the order was unwarranted by the case, even if in other respects it could be upheld. But under the authority cited above, and for the reason hereinbefore stated, we think that the order of the special term was not supported by the case presented.

Order reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Dwight, P. J., and Lewis, J., concur.


text:
    Philip D. Armour et al., Plff's, v. The Cayuga Lake Ice Line, Def’t.

      (Supreme Court, General Term,, Fifth Department,

      Filed October 23,1891.)

    Contract—Sale of ice—Construction.
    Defendant entered into a written agreement in February, 1889, to furnish to plaintiffs merchantable ice not exceeding 500 tons, as ordered, in quantities not less than ten tons at one order. The contract provided that during the time that ice was being harvested from the lake it should he furnished at fifty cents a ton, and when furnished from storehouses at one dollar a ton. It was further provided that if merchantable ice could he harvested from the lake during the winter of 1889-90 defendant would sell the ice direct from the lake at fifty cents, held, that the contract was not limited to the year 1889, but extended to the year 18ti0, unless the whole 500 tons had been sooner delivered.
    Motion by the defendant for a new trial on exceptions taken at the Monroe circuit in March, 1891, and ordered to be heard at the general term in the fir&t instance.

      W. W. Webb, for def’'t; Hubbell & McGuire, for pl’ffs.
   Macomber, J.

This action is to recover damages for a breach of a written contract, as follows: “ Memorandum of agreement made this February 21,1889, by and between the Cayuga Lake Ice Line, of Rochester, FT. Y., of the first part, and Armour & Company, dealers in meats, with a branch office at Rochester, FT. Y., parties of the second part, witnesseth:

“ That the party of the. first part hereby agrees to furnish to the parties of the second part, ice, of a good merchantable quality for general use, at the times and .places and quantities and prices as follows, to wit: All ice to be furnished at such times and in such quantities, of not less than ten tons at any one order, as said parties of second part may desire, and upon a notice of not less than three days. Said ice to be delivered on the cars at the beef refrigerator of said parties of the second part, at the corner of Jones and Center streets, in the city of Rochester, N. Y., at the following rates:

“All ice ordered by said parties of the second part of said party of the first part, as aforesaid, during such times as ice is being harvested by the party of the first part from the waters of Cayuga lake, to be furnished at the rate of fifty cents per ton of 2,000 pounds. Ice furnished by the party of the first part to the parties of the second part from the storehouses of said first party to be furnished at the rate of one dollar per ton.

“ It is agreed that if merchantable ice can be harvested from the waters, of Cayuga lake during the winter of 1889-90, said first party will sell to said second party ice direct from the waters at fifty cents per ton of 2,000 pounds.

“ It is understood and agreed that, the total amount of ice to be delivered by said first party to said second party under this contract shall not exceed five hundred tons.

“ Parties of the second part agree to purchase ice of the party of the first part upon the aforesaid terms and conditions.”

Under this contract the plaintiffs ordered and received from the defendant in the year 1889, 268 tons of ice. It appears that there was no ice harvested by the defendant in Cayuga lake in the year 1889-90, nor did the plaintiffs demand any ice in that year until April 26, 1890. This demand was not acceded to by the defendant, nor were subsequent demands of like nature. For such refusals this action is brought to recover the additional sums of money which the plaintiffs were compelled to pay out to supply their need of ice during the period which they claim was covered by the contract Of the amount of such expenditure to' other persons there seems to be no question-; so that, if the construction placed upon the contract by the learned judge at the trial is correct, the judgment upon the merits of the case should be affirmed.

It is argued by the learned counsel for the defendant that the true construction - of the contract is that no ice was to be delivered after the year 1889. The first paragraph of the contract does not name the time during which the agreement should be operative, except that it was the duty of the defendant to furnish it at such times and in such quantities of not less than ten tons at any one order as the plaintiffs should desire, and for which notice should be given, not exceeding five hundred tons in all. But in fixing the prices it is stated that during such times as ice may be harvested by the defendant from the waters of Cayuga lake the ice should be furnished at the rate of fifty cents per ton, while ice not so harvested and which was furnished from the storehouses of the defendant was to be paid for at the rate of $1.00 per ton. But the most important part of the agreement relating to the matter in dispute is the clause above quoted to the effect, that if merchantable ice could be harvested from the waters of Cayuga lake during the winter of 1889-90, the defendant would sell to the plaintiffs direct from those waters at the rate of fifty cents per ton. This clause of the contract, it seems to us, necessarily implies that the time to be covered by the deliveries was not limited to the year 1889, but extended to the year 1890, unless the whole five hundred tons had been sooner delivered, and that consequently the contention made in behalf of the plaintiffs is correct

The motion, therefore, for a new trial should be denied.

Motion for a new trial denied, with costs, and judgment ordered for the plaintiffs on the verdict

Dwight, P. J., and Lewis, J., concur.


text:
    Frank Fleissner, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    Negligence—Railroad crossing.
    While plaintiff’s son was driving his team across defendant’s track at a street crossing in the -morning, the team and wagon were struck and injured by a train. The son testified that he looked both ways but saw no train and did not hear the bell or whistle; that while driving on a walk he saw the train coming and tried to get out of the way, and whipped up the horses as best he could. The view of the track was unobstructed by buildings, for a space of twenty-five feet from the track, and although plaintiff’s witnesses testified that freight cars were so situated on a side track close to the street as to obstruct the view, yet it was shown by subsequent measurements that no s’de tracks existed within 112 feet of the street. Held, that a verdict for plaintiff was not supported by the evidence.
    Appeal from a judgment entered in Brie county, January 16, 189-1, on a verdict of a jury at the circuit; and also from an order denying the defendant’s motion for a new trial made on a case and exceptions. . .

      James Fraser Gluck, for app’lt; John M. Hull, for resp’t.
   Macomber, J.

The action was brought to recover damages to the plaintiff’s horses and wagon received in a collision with the defendant’s train at the railway crossing' on Clinton avenue in the city of Buffalo, June 22, 1889.

The plaintiff’s son was engaged in hauling stone from the canal through Clinton avenue across the defendant’s tracks to Niagara street. He was a young man sixteen years of age, and was well acquainted with the crossing in question. His horses were tractable and easily managed, and not specially afraid of locomotives. While attempting to cross the tracks of the defendant, going from Niagara street westerly, the defendant’s engine struck the wagon and horses. The locomotive was coming from Suspension Bridge to the city of Buffalo, running from twenty to twenty-five miles an hour. The collision occurred at ten o’clock in the morning.

The plaintiff’s son testified, in substance, that while returning from Niagara street he looked in both directions while approaching the defendant’s tracks, but saw no locomotive. He also says that he did not hear the sound of any approaching train. He has given no evidence of actually listening for the approach of a train other than as an inference which may be drawn from his affirmative testimony that he looked in both directions, indicating thereby that his mind was upon the dangers of an approaching train.

After testifying that he heard no bell or whistle, he says that while driving on a walk he saw the train coming and tried to get out of the way and whipped up the horses as best he could. He further testified that there was a saloon on the corner between the waiting room and Niagara street; that before passing the waiting room he looked for the train, and that the next time he looked was when he was on the track. He also testified that he looked once when he was right by the waiting room, and then he says that he went on and looked until he got onto the track where he was struck.

These obstructions, however, ceased to prevent a clear view of the tracks to the north for a space of twenty-five feet east of the east track, from which direction the driver was approaching. Other evidence was given in behalf of the plaintiff from which it is claimed that there were standing upon a side track, and close to Clinton avenue so as to obstruct the view, freight cars belonging to the defendant One of the witnesses says that these were within four or five feet of Clinton avenue. This evidence, however, is not by any means satisfactory, and in view of the testimony given in behalf of the defendant ought not to have been deemed sufficient to sustain a verdict upon the ground of any obstruction of the view by reason of cars standing upon the defendant’s side tracks; for testimony is given by witnesses in behalf of the defendant, in its nature conclusive, being based upon accurate and undisputed measurements, to the effect that there was no side track, mentioned by the plaintiff or his witnesses, within 112 feet of Clinton avenue, and that for about one-third of a mile, at least, the view, in the direction from which the engine came, was unobstructed for a distance of thirty-eight feet before reaching the second track, the one upon which the plaintiff’s property was - damaged. It is stated, however, in the brief of the respondent that this evidence can be of no effect, because the measurements and observations taken by the witnesses were made and taken long after the accident, and that there is no proof made by the defendant of the condition of this crossing at the time of the accident If this contention were correct, it would, indeed, lead us to the conclusion that the verdict of the jury had been placed upon trustworthy evidence. But upon inspection of the testimony it is found that, though the measurements by the witnesses named were made several months after the accident, yet the evidence thereof was given upon the assumption by the court and counsel that there had been no change in the side tracks between the time of the accident in June and the measurements in the following February. With the testimony given in behalf of the plaintiff, touching such obstruction on the side track, thus shown to have been untrue and so eliminated from the case, there do not remain sufficient facts to support the verdict It seems to us, therefore, that the motion for a new trial should have been granted by the special term upon the ground that the verdict was against the evidence¡

. It follows that the judgment and order appealed from should' be reversed, and a new trial granted, upon the condition, however, that the defendant pay the costs of the trial term. Ho costs of this appeal are allowed to either party.

Judgment and order reversed, and a new trial granted, on payment of the costs of the trial term.

Dwight, P. J., and Lewis, J., concur.


text:
    Samuel H. Torrey, Jr., Resp't, v. Henry Standish et al., Ex’rs, App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    Assignment—Admissions.
    Plaintiff brought this action to recover upon a claim for goods sold and services rendered which had been assigned to him. On the trial plaintiff admitted some of the items of the counterclaim set up, and defendant stated that no issue would be made as to plaintiff’s claim for wood. Held, that this statement was an admission of the assignment as to the entire claim for goods sold.
    Appeal from a judgment entered in Onondaga county, July 14. 1886, on the report of a referee.

      Charles H. Paddock, for app’lts ; Edwin Hicks, for resp’t.
   Macomber, J.

This action was brought to recover upon an open account for the personal property sold and delivered by Samuel H. Torrey and George T. Standish, respectively, and for work, labor and services and moneys laid out and expended by them, which accounts had been assigned to the plaintiff. Besides the general denial, the answer contained allegations of settlement made by the original contractors, together with payment, and counterclaims. Upon the issue presented by the reply filed to the counterclaims, the trial was had before a referee which resulted . in a judgment for the plaintiff. The referee has found upon competent evidence, that, from the spring of 1865 to June 30th, 1873, Samuel H. Torrey, the plaintiff’s assignor, sold and delivered to Henry Standish and Salem Standish, (the latter now deceased, being represented by his executrix), who were then partners in business, personal property of the agreed price; and performed legal services at their request and for which they became liable to pay several sums of money, amounting in all to $1,486. He has also found as applicable in part to the payment of such claim, many items of account, fully set out in his report, of Standish Bros., amounting to $1,026.55, leaving abalance in favor of Samuel Torrey, upon that cause of action, in the sum of $4,59.45.

The referee further finds that Greorge T. Standish had a claim against the defendants amounting to the sum of $1,392.15, but that the same had been reduced by payments and counter-charges on the books of the parties in the sum of $962.48, leaving a balance due to Greorge T. Standish, which was assigned to the plaintiff, of $429.67. Upon these two balances of accounts he gives judgment for the plaintiff in the sum of $889.12.

Every intendment must be made in behalf of the correctness of the judgment entered upon this report. The case fails to show that all the evidence is returned to us; and there are no -requests made to the learned referee to find upon any questions of fact differently from the conclusions, as has already been stated, to which he arrived.

An elaborate argument, however, has been addressed to us by the learned counsel for the appellant, to the effect that the claim of Samuel H Torrey against the defendants had not been assigned to the plaintiff, and that consequently the plaintiff could not recover thereon. By reference to the case, however, it will be found that the ground work of suck contention is wholly cut away by the admissions made by the defendant upon the trial. At the hearing on September 23, 1881, the following proceedings, were had: “ Plaintiff Torrey admits the item of $100 charged 8th of August, 1865, in defendants’ bill of items.”

“ Defendants’ counsel states that no issue will be made as to the amount of plaintiff’s claim for wood.”'

“ Plaintiff Torrey admits that about September, 1865, defendants paid to Gr. T. Standish for him $100; also, that they paid Captain Herendeen for him, charged November 14th, 1865, $35, and order on Herendeen December, 1865, for $46.50.”

It is obvious that the statement by counsel that no issue would be made as to the amount of plaintiff’s claim for wood carried the whole of plaintiff’s claim based upon the assignment of the account against the defendants, except the item of twenty dollars, the latter being for legal services. But even this item cannot, be deducted, inasmuch, as has already been-stated, the whole of the evidence is .not before us¡ and because there was no request made to the referee to find otherwise than he has upon that item.

In respect to the claim of the plaintiff based upon the assignment of the account of George T: Standish against the defendants, it appears that the conclusion arrived at by the referee was amply sustained by the testimony of George T. Standish, which is given in detail. The principal items of this claim do not appear to be substantially disputed, though in minor details there, is a conflict of evidence, but a preponderance of the evidence is in favor of the plaintiff’s contentions in respect to such item.

We have examined the several exceptions taken at the trial, to which our attention has been called by counsel for the appellants, but do not find in them any error which would impair the correctness of the conclusions reached by the referee.

It follows, therefore, that the judgment appealed from should be affirmed.

Dwight, P. J., and Lewis, J., concur.


text:
    Fred. R. Gray, Resp’t, v. The Rochester City & Brighton Railroad Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed, October 23, 1891.)

    Bailboad—Negligence—Defective tbacks.
    Plaintiff, while riding on the step of a crowded excursion car on defendant’s line, was struck and injured by a car which approached on the other track without his knowledge. It appeared that the tracks were nearer to each other at this place than on other portions of the route, and that by the sinking of one of the rails of the other track the cars pitched toward each other, of which fact plaintiff is not shown to have had knowledge. Held, that" defendant owed a duty to its passengers to- keep its tracks in good yrder, and a failure to do so rendered it liable for the injuries inflicted in ^consequence thereof.
    Appeal from a judgment entered in Monroe county February 27, 1891, on a verdict at the circuit, and from an order denying the defendant’s motion for a new trial made upon the minutes of the court

      Theodore Bacon, for app’lt; A. Van Voorhis, for resp’t.
   Macomber, J.

The plaintiff, while riding upon one of the defendant’s open cars, known as an excursion car, was struck by another car passing in the opposite direction upon an adjacent track.

At the time of this accident, which was in the "middle of the afternoon of June 13, 1889, the plaintiff, with many others who crowded the car, was on his way to attend a base ball game in the eastern part of the city of Rochester. He boarded the car opposite his store on Main street, near Cortland, where the same stopped for passengers. The seats of this car ran crosswise. As has already been stated, it was crowded at the time the plaintiff undertook to get on board. At each end of the car was a platform, and these platforms were also filled with standing passengers. A continuous step or rail ran the whole length of the car on either -side, halfway between the platform of the car and the ground. There were six posts on each'side supporting the roof of the car.. The plaintiff was riding upon the north rail or step of the car, being upon the side towards the other street car track, with one foot upon the rail and the other upon the floor of the car, hanging by his hands to the upright bar or post about midway of the car.

After passing East avenue on Main street, and while opposite what is known as the Sibley block, a one-horse car of the defendant was met and was passed without accident, the plaintiff’s attention having been called to it, either voluntarily or through a notice of someone else. Close behind the one horse car was a larger car drawn by two horses, to which the plaintiff’s attention had not been called, and which he did not see and was unaware of its approach. Nor did any of the other passengers similarly situated see the approach of this large car. The last named car, on the north track,-came in contact with the plaintiff. and others, and for the injuries there received by the plaintiff this action is brought.

Evidence was given in behalf of the plaintiff to the effect that at the place where this collision happened the two tracks of the defendant’s road were nearer to each other than at other places along the route, and, also, that by the sinking of the south rail of the north track the cars at the point named pitched toward each other, rendering the position of the persons riding upon the step more dangerous than elsewhere upon the railroad. There is no evidence to show that the plaintiff or any of the passengers upon that rail knew the fact of this specially dangerous condition of the tracks. We are bound to assume upon this appeal, as it seems to us, that the verdict of the jury was, as it well might have been, placed solely upon this ground.

We are not able to say, from the evidence, that had these tracks been placed at the same distance as elsewhere upon the route, and both had been in a safe condition, the plaintiff would have come in contact with the car running upon the north track.

The defendant owed a duty to its passengers to keep its tracks in good order; and a failure to do so rendered it liable for the injuries to the plaintiff which were inflicted without fault on his part. This serious omission of duty in respect to the tracks of the railroad, pointed out above, and upon which our judgment may safely rest, takes the appeal out of the operation of the cases of Coleman v. Second Ave. R. R. Co., 114 N. Y., 609 ; 24 N. Y. State Rep., 566 ; and Craighead v. B. C. R. R. Co., 123 N. Y., 391; 33 N. Y. State Rep., 620, greatly relied upon by the learned counsel for the appellant

It follows that the judgment and order appealed from should be affirmed.

Dwight, P. J., and Lewis, J., concur.


text:
    Christine Ott, Resp’t, v. The City of Buffalo, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23,1891.)

    Municipal corporations—Negligence.
    Plaintiff’s intestate, who had been drinking, but not so much as to inca-

      pacitate him from exercising a proper degree of care, while returning home late at night with a friend and carefully feeling his way along a street on account of its dangerous condition, came in contact with a barricade consisting of a matched pine board, which was cross-grained and gave way; precipitating him into a sewer then being constructed, by which he received, injuries resulting in his death. Held, that from these facts it was competent for the jury to draw the inference that the city should have had a more secure protection to pedestrians, or by some means indicated the insufficiency of the board, and that a verdict for the plaintiff would not be disturbed.
    Appeal from a judgment entered in Erie county, on the verdict of a jury at the circuit, May 20, 1891, and also from an order denying the defendant’s motion for a new trial on a case and exceptions ; and, also, denying a motion for a new trial upon the ground of newly discovered evidence.

      George M. Browne, for app’lt; C. S. Cosser, for resp’t.
   Macomber, J.

This action is brought to recover damages for personal injuries to the plaintiff’s intestate which resulted in his death.

John Ott, the deceased, was passing along Clinton street in the city of Buffalo late at night on the 11th of May, 1890, and at a point about one hundred and fifty feet from Babcock street he fell into a sewer which was in process of construction by the defendant, and shortly after died from the effect of the fall. The deceased was a very large man, weighing two hundred and fifty pounds, and about six feet eight inches in height At the time mentioned he was accompanied by a friend, whose evidence is in the record, before us. This man testified that shortly after leaving Babcock street and turning into Clinton street the witness was carefully feeling his way alorig on account of the dangerous condition of the sidewalk by reason of its being torn up in places, and called upon the deceased to be careful, because the sidewalk was in a bad condition. The deceased answered that he was all right and followed along about eighteen or twenty feet behind the witness. The deceased, either by tripping, or through some other cause, came in contact with a barricade to the excavation, which consisted of a matched pine board, which was cross-grained, and this gave way, precipitating him into the sewer.

The evidence of the witness who accompanied the deceased at the time mentioned, and of other persons, was sufficient to enable the j ary to say that the guard to the sewer was insufficient by reason of the board being inadequate. The evidence, all taken together, indicated, as the learned justice upon the motion for a new trial has said, that the intestate had fallen against a board that was broken by the fall and he was then precipitated into the sewer. From such fact it was competent for the jury to draw the inference that the city should have had a more secure protection to pedestrians, or by some means indicated to the passer-by the insufficiency of the board which they had in fact placed there.

There is evidence in the case showing that the deceased had been drinking considerable beer during the evening, but it is shown on the other hand that such drinking did not incapacitate him for walking in the ordinary manner, or from exercising that ■degree of 'care which persons of ordinary prudence are accustomed to observe when passing along the streets of cities. The evidence of the person accompanying the deceased shows satisfactorily that there was no want of care by the deceased; but, on the contrary, that he and the witness were giving their attention to the dangers attending the situation.

In respect to the motion for a new trial upon the ground of alleged newly discovered evidence, it is sufficient to say that under the well established practice of the courts the motion was properly denied by the special term, for the reason that no part of the evidence so promised on the new trial could properly be said to be different in character from that which appeared in a greater or less degree upon the trial already had. This newly discovered evidence relates to the habits of the deceased and of the main witness in respect to indulging in intoxicating liquors, and to the condition and strength of the board used as a guard to the sewer. All of the evidence now promised was in the easy reach of the defendant at the time of the trial, and, if it had been adduced, there appears to us no probability that it would have materially affected the verdict.

The judgment and orders appealed from should be affirmed.

Dwight, P. J., and Lewis, J., concur.


text:
    George Foggan, Resp’t, v. The Lake Shore & Michigan Southern Railway Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    Carriers—Conversión—Wrongful delivery.
    Plaintiff shipped several car loads of hay by the defendant’s road, four of which were delivered. He then directed defendant not to deliver any moré without the bills of lading, as the consignees had failed to pay for that already delivered, but the other two carloads were delivered in violation of this notice. In an action for conversion of the hay, Held, that the jury were warranted in finding a verdict for the two car loads delivered in violation of the direction given.
    Appeal from a judgment entered in Erie county clerk’s office October 25, 1890, on the verdict of the jury at the circuit; and also from an order dated October 15, 1890, denying the defendant’s motion for a new trial.

      Charles A. Pooley, for app’lt; Adelbert Moot, for resp’t.
   Macomber, J.

The action is trover, for the recovery of the value of two car loads of hay alleged to have been converted by the defendant to its own use.

The whole number of car loads of hay which the plaintiff shipped was eight, four of which were delivered before the middle of January 1889. On the 21st day of January, 1889, the plaintiff informed the defendant’s agent that he did not want any more of the hay delivered to the consignees without a bill of lading, because they had failed to pay for what had already been delivered. Subsequently to that the remaining two cars were forwarded and were delivered to the consignees in violation of this notice. Under the facts disclosed, the jury was warranted in finding a verdiet for the two car loads of hay which were delivered in violation of the direction given to the defendant by the plaintiff, and in violation of the latter’s agreement Laws of 1858 (chap. 326), p. 533; Colgate v. Penn. Co., 102 N. Y., 121; 1 N. Y. State Rep., 166.

But it is argued by the learned counsel for the appellant that, assuming the plaintiff’s statement to be true, he cannot claim for the car the bill of lading of which was dated on the 15th day of January, and which, he argued, had been delivered to the consignee, and was being unloaded at the time the plaintiff saw the defendant’s agent and made the agreement above mentioned. But, if we understand the evidence correctly, it is by no means certain that the car, the bill of lading of which is dated January 15 th, had been delivered at the time of making the arrangement. On the contrary, from an examination of the testimony, it is found that there was sufficient evidence to enable the jury to say that the car load represented by the shipping bill of January 15th had not, nor had any part of it, been unloaded on the 21st of that month, when the agreement was made.

The witness Merrifield shows to whom bills of lading had been delivered by the plaintiff, and that he received the orders endorsed on the bills of lading at about the time of their date; and the order on the bill of January 15th is dated January 27th. It may be reasonably inferred' that Merrifield did not receive the bills before the date of the orders on the back thereof. He then went in search of the cars and found them; and discovered that they were being unloaded at that time, which appears to be a date later than the 21st of" January, Furthermore, this point, now brought to our attention, was not raised upon the trial nor upon the motion for a new trial made at the circuit, so far as the record before us shows. In the motion made by the defendant’s counsel, for a direction of a verdict in behalf of the defendant, no suggestion was made that the cáse of the one car was different from that of the other. The trial proceeded upon the hypothesis,' that if the plaintiff was entitled to recover for the contents of the one, he was likewise entitled to recover for the contents of both. The ground of the motion for a new trial at the special term is not stated in the case. The order merely recites the making of the motion upon the judge’s minutes, and this is followed by an order denying the same.

The judgment and order should be affirmed.

Dwight, P. J. and Lewis, J., concur.


text:
    Stephen E. McNall et al., App’lts, v. John W. Kales, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Board of health—Penalties.
    Boards of health should fix, applicable to all persons, a definite penalty for violation of its regulations, which will be the measure of damage in an. action for such violation.

      3. Same.
    _ The only penalty imposed by a board of health by any order or regulation was as follows: “ The local board of health will enforce compliance and inflict a penalty not exceeding a hundred dollars fur non-compliance with, or violation of its lawful regulations and orders." In an action for a penalty, Held, that this did not constitute the imposition of a penalty, but was a mere repetition of the language of the statute, and that no definite penalty having been imposed for the violation in question, no recovery could be had.
    Appeal from a judgment entered in Cattaraugus county clerk’s office, March 11, 1891, on a non-suit directed at the circuit in March, 1891.

      A. & G. E. Spring, for app’lts; Bolles & Waring, for resp’t.
   Macomber, J.

The plaintiffs, as the board of health of the town of Franklinville, bring this action to recover a penalty of the defendant, who was a practising physician in that town, for omitting to report to the board of health a case of diphtheria, as required by the town board of health.

The answer puts in issue all of the allegations of the complaint. After hearing such evidence as was offered and received, the court at the trial, on motion of the defendant’s counsel, granted a non-suit, holding, as we gather from the report of his oral remarks at the hearing, that there was not competent evidence of the fact of an adoption by the plaintiffs, as the board of health, of any regulations affecting the preservation of health and the registration of vital statistics; and secondly, that the board of health had failed to exercise the power conferred upon it by statute to impose a penalty in their regulations for the offense alleged to be committed by the defendant.

There is attached to the case (Exhibit A.) a paper purporting to be an account of the organization of the local board of health of the town of Franklinville, but which, in reality, seems to be nothing further than a statement of the things enacted by chapter 270 of the Laws of 1885. Among the duties imposed upon the board of health of towns by this statute, was the making from time to tfme, and the publication of orders and regulations which the boards should think necessary and proper for the preservation of life and health, and the successful operation of the statute; § 3, sub. 6; and id. sub. 9. “To impose .penalties for the violation of, or non-compliance with, their orders and regulations, and to maintain actions in any court of competent jurisdiction to collect such penalties, not exceeding $100 in any one case, or to restrain by injunction such violations, or otherwise to enforce such orders and regulations.”

The only penalty imposed by any supposed-order or regulation made by the board of health appears in Exhibit A, as follows: “ The local board of health will enforce compliance and inflict a penalty not exceeding a hundred dollars ($100) for non-complionce with, or violation of its lawful regulations and orders.”

This action, it must be borne in rnind, was not brought upon the statute, but upon an alleged order or regulation alleged to have been made by the board of health in pursuance of the powers conferred upon it by the statute. It will be seen that the supposed order or regulation, which it is now claimed in behalf of the plaintiffs was an imposition of a penalty for .the violation of the law committed by the defendant, was not the exercise of the power given to the board by the statute, but is a mere repetition of the language of the statute itself. It would be impossible for the board of health, under thjs statute, to bring an action for the penalty imposed by one of their regulations so long as the .amount of the penalty is left undetermined and indefinite through non-action of the board. It is to the board acting as a unit that the power is given to make a regulation imposing a definite and determinate penalty, and then the further power is conferred, to recover by action at law such penalty. The board alone, as a body, outside of the courts, .is clothed with power to fix. the amount within the limitation of the statute as a penalty which any person shall be required to pay for violation of the ordinance or regulation. The case presented to us, therefore, is as though the members of the board of .health had brought an action to re■cover a sum of money which, upon the trial of the action, they .should show ought to be paid to it under the circumstances. But there is no authority given by the statute to permit the plaintiffs, after an action has been brought by them, thus,.to determine the amount of the penalty. The theory, of the statute, is that, the board of health should fix, applicable to all persons, a definite penalty for violation of its regulations; and on, proof of the violation thereof the recovery would be for the exact amount of money thus provided for, and not for a sum to be established by proof upon the trial.

Upon the ground, therefore, that the plaintiffs had not, before this action was brought, passed any resolution or made any regulation imposing a definite penalty for violation of its rules, we think the judgment appeáled from should be affirmed.

Dwight, P. J., and Lewis, J., concur.


text:
    Betsy Whitman, Adm’rx, App’lt, v. Matthew F. Foley et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Appeal—Amendment 'oe order oe general term.
    The general term has no power to amend its order by stating that it was made on the facts after an appeal therefrom has been determined by the court of appeals; especially where that court has denied an application for leave to make application for such amendment with a view to a reargument in that court.
    .2. Same—Intermediate order.
    A failure to state in the notice of appeal from a final judgment that an intermediate order will be brought up for review deprives the appellant of the right to review such order, and when defeated on such appeal he cannot appeal from such order.
    Appeal from an order of the Monroe special term, dated' July 30, 1888, denying the motion to set aside the report of a referee and for a new trial Also an original motion by the plaintiff to amend a previous order of this court by adding thereto the statement that the order was made upon the facts.

      J. D. Teller, for app’lt; Wm. E. Hughitt, for resp’ts.
   Macomber, J.

The original- motion is an application to this-court to amend its order of October 30, 1889, reversing the judgment and granting a new trial before another referee, by adding thereto that our decision was made upon the facts in the case.. Had this motion been timely made, it probably would have been granted ; for the opinion of this court was devoted mainly to the consideration and discussion of the facts as developed upon the trial. The defendants appealed to the court of -appeals from the order granting a new trial; and after hearing the case that court-reversed the order of the genéral term and affirmed the judgment entered upon the report of the referee.

It is disclosed in the moving papers that during the progress of the argument in the court of appeals the question was raised, inasmuch as there appeared in the record no statement of this court that our reversal rested upon questions of fact, that the facts were not before the court of appeals, and that, consequently, that, court would consider only errors of law. No effort seems to have been made at that timé to arrest the further hearing of the case in the court of appeals for the purpose of making application to this court for an amendment of the order now asked for. The argument consequently continued with the result above stated.

On the 9th day of March, 1891, a motion was made in the court of appeals to amend the remittitur of that court by adding thereto a precision granting the right to the plaintiff and appellant to apply to the general term of the supreme court to amend the order and judgment of October, 1889, by adding thereto that the decision of this court was made upon the law and the facts in the case, and sending the return back to that court for the purpose of making such amendment, and directing that the order and judgment of the court of appeals be declared to be made without, prejudice to such application. Such motion was afterwardswholly denied by the court of appeals.

We know of no authority to sustain our right to entertain this motion. It certainly does not exist in the case of Roberts v. Tobias, 120 N. Y., 1; 30 N. Y. State Rep., 189, and 120 N. Y., 665; 31 N. Y. State Rep., 950. It is stated in the foot note to the above case that the reargument in that case was made upon the stipulation of the parties, after an amendment of the general term order was made by inserting therein a statement that the reversal was upon a question of fact. We are not advised by the reported case whether the amendment made by the general term was by consent or not. But there appears before us, by an affidavit of one of the attorneys in that action, that the amendment made at the general term therein was by consent of the parties. Yet it could make no difference in our disposition of this case whether it was done by consent or otherwise, for the court of appeals, as pointed out above, -has denied the plaintiff’s application looking to a reargument in that court, and for leave to apply to us for such an amendment Hamlin v. Sears, 82 N. Y., 328. This, perhaps, is all that need be said touching the original motion.

The other portion of the case relates to an appeal of the plaintiff from an order denying the motion to set aside the report of the referee and for a new trial It seems to us, however, that this order was necessarily covered by the decision of this court made upon the appeal from 'the judgment itself. The plaintiff, upon that appeal, conclusively placed before this court every legal question arising upon the case contained in the record as settled. It was not competent for the plaintiff to have appealed from the judgment and have reserved for future consideration by the court at general term any question relating to the merits of the judgment so appealed from already appearing. By § 1301 of the Code of Civil Procedure it was competent for the plaintiff, in her notice of appeal, to state in such notice of appeal that such order would be brought up for review. A failure to give such notice in the notice of appeal deprived the appellant of the right to review such intermediate order. Under our practice it is competent often to review by appeal some intermediate order or interlocutory judgment before the entry of the final judgment. But such reviews are taken under special provisions of the Code not necessary here to mention. But where the appeal is from a final judgment, as it was in this case, we know of no provision of the statute which permits the appellant, when defeated on such appeal, to attempt to retrieve his misfortunes by reverting again to some intermediate order made in the case.

The order appealed from must be affirmed and the motion denied.

Order affirmed, with ten dollars costs and disbursements, and the motion denied.

Dwight, P. J., and Lewis, J., concur.


author: Per Curiam.

text:
    In the Matter of Lexington Avenue. In re John Schreyer, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Eminent domain—Leave to file objections—Loches.
    The time to file objections was limited by the commissioners to March 29, 1888. The appellant employed counsel to represent him, who advised him to do nothing. In November following he obtained an order to show cause why he should not have leave to file objections. Held, that the court was justified in denying such leave on the ground of loches.

    Appeal from, order denying motion for leave to file objections to preliminary report of commissioners.

      James A. Deering, for app’lt; Carroll Berry, for resp’t.
   Per Curiam.

On February 14, 1888, the commissioners of estimate and assessment gave the notice required by the statute regulating these proceedings, requiring all persons interested in the proceedings or any of the lands affected thereby, or who may be opposed to the same, to present their objections in writing on or before the 29th. day of March, 1888.

Mo objections were filed by the appellant, John Schreyerwithin the time allowed by law and the notice. Subsequently, on the 15th • of Movember, 1888, the appellant obtained an order-requiring the petitioners to show cause on the 20th of Movember,. 1888, why he should not have leave to submit to the- commissioners any affidavits and objections. That motion was denied.

In the order entered it is not stated that the motion was -denied on the ground that the court had no power to grant it; the -order is general, simply denying the .motion.

An examination of the record will show that the court might well have denied the motion on the ground of loches and that the motion was not made in good faith or for the protection of the .appellant. The appellant does not state when he first knew of the proceedings, but it is evident that he did know of them in ample time to have appeared before the commissioners and to have filed any objections to their report. He did .employ counsel to represent him and did nothing else, and when he consulted with his counsel his counsel advised him not to do anything and he followed that advice.

It is evident, therefore, that not only did the appellant have full knowledge of the proceedings but he also had knowledge - of the fact that he had been awarded but one dollar for his property in ample time to have protected himself, and that he adopted the course that he did under the advice of his counsel. .

Assuming, therefore, that the court had power, to grant the application, we think it was justified in denying- it on the ground before stated. ...

Order appealed.from affirmed, with ten dollars costs and .disbursements. As the order is affirmed on the merits it is not necessary to consider the motion to dismiss the appeal.

That motion will therefore be denied, without costs.

Van Brunt, P. J., and Daniels, J., concur.


author: Ingraham, J.

text:
    George H. W. Curtis, Resp’t, v. The Wheeler & Wilson Manufacturing Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 16,1891.)

    Verdict—Weight Ce evidence.
    Plaintiff testified to the effect that- defendant agreed to pay a certain sum. for a machine. His witness testified only that she did not hear its president refuse to give that amount. The making of such agreement was denied by such president, and it was contradicted by plaintiff’s letters, written subsequent to the alleged promise and long before the commencement of the action. Reid, that the verdict in favor of plaintiff was against the weight of evidence.
    Appeal from judgment entered on a verdict of the-jury at circuit..

      Myron Winslow, for app’lt; Howard A. Sperry, for resp’t.
   Ingraham, J.

I think the judgment, should be reversed and a new trial granted on the ground that the verdict of the jury, where they found, that there was a contract whereby the defendant agreed to pay plaintiff $5,000 for the machine, was against the weight of evidence. The plaintiff’s testimony as to such agreement is entirely uncorroborated by any other testimony.

All that Louise Cadmus, who was called for the plaintiff, testifies to was that she did not hear Mr. Wheeler refuse to give 85,000, and, so far as I can see, nobody has ever testified that Mr. Wheeler did refuse to give $5,000, the question being whether or not Mr. Wheeler did agree to pay that sum to the plaintiff.

The making of such an agreement is expressly denied by Mr. Wheeler, and his denial is corroborated by all the probabilities of the case; by the letters written by plaintiff to defendant two or three years subsequent to the alleged promise, and long before the commencement of the action; the transactions between the plaintiff and Mr. Gordon at the time the alleged settlement took place, and the fact that no claim was made for the $5,000 for a long time after the alleged contract was made.

The letters written by plaintiff to Mr. Wheeler are absolutely inconsistent with the existence of the contract claimed by plaintiff. In all of these letters the claim is made that the plaintiff is entitled to one dollar on each machine. That claim is expressly stated in the letter of April 5, 1880, and the letter of April 3, 1882.

Ho good purpose will be subserved by an extended analysis of the testimony that has led us to this conclusion. It is sufficient to say that this conclusion has been arrived at by a careful consideration of the whole testimony.

It has been held by this court, where plaintiff’s • testimony to sustain his cause of action was uncorroborated, and was contradicted by letters written by him to the defendant long before the commencement of the .action, that a verdict in favor of plaintiff will be set aside, and a new trial granted, as in such case the jury was bound to disregard the testimony of the plaintiff, and the verdict was against the- weight of evidence. See Boyd v. Colt, 20 How., 384: Townsend Mfg. Co. v. Foster, 51 Barb., 351; Lynch v. Pyne, 52 How., 435.

There was, however, no motion made to dismiss the complaint, and the question is before us on the appeal from the order denying the motion for a-new trial." That order and the judgment should be reversed, and a new trial granted, on payment of the costs of the trial, including witnesses’ fees with disbursements, with costs of this appeal to- appellant to abide the event:

Van Brunt, P. J., and Daniels, J., concur.


author: Daniels, J. Ingraham, J.

text:
    Edward R. Ladew et al., Resp’ts, v. The Hudson River Boot & Shoe Manufacturing Co., Def't

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Attachment—Fraud.
    The mere fact that a corporation is insolvent and sells all of its property for the purpose bf raising money is not sufficient to authorize an attachment on the ground that it has disposed of, etc., its property to defraud its creditors.

      Appeal taken .by the temporary receiver of the company from an order denying a motion to vacate an attachment

      Geo. S. Hastings, for app’lt; Geo. A. Strong, for resp’ts.
   Daniels, J.

The attachment was issued on the ground that the defendant had assigned, disposed of and secreted, and was about to assign, dispose of and secrete property with intent to defraud its creditors. The attachment was issued on the 23d day of July, 1891. And the temporary receiver of its property was appointed on the 29th of the same month, in a proceeding for the voluntary dissolution of the corporation.

The charge that the company had, or was about to, dispose of its property to defraud' its creditors, depended on the facts that within a week prior to the issuing of the attachment its president represented to one of the plaintiffs that “ it had at its store in the city of New York merchandise of the value of $25,000, that attachments were issued against it in the city court because of its residence in Dutchess county, on the twenty-second day of the month, and the sheriff had been prevented from serving the attachments by the statement that the merchandise in the store had all been sold to J. A. Bates, who then claimed to be its owner. It was also stated in another affidavit that the attorney of the company-had admitted that it had transferred all its property in the city of New York to J. A. Bates for the purpose of raising money. And it was on these facts that the averment was made that the company had disposed of, or was about to dispose of, or secrete its property to defraud its creditors.

But it is quite clear that the facts disclosed do not support the inference which the plaintiffs endeavored to deduce from them. The sale to Bates was not shown to be dishonest or fraudulent, or for a consideration in any respect inadequate. It was to raise money, and the company was at liberty to make the sale for that object. Even if the cov.pany was insolvent, as it may be inferred it was from the proceedings taken to secure its voluntary dissolution, it still had the right to sell its property to raise money, which is, in fact, all that it was made to appear that it had done. The conclusion sworn to, that the sale was induced by a fraudulent intent, can only support an attachment when it appears to be warranted by the facts. And the sale mentioned did not warrant it There was, on the contrary, nothing to indicate that the sale was fraudulent, or made for any other than a' lawful object. Fraud is never to be presumed in the absence of facts supporting the presumption that it exists; and when its existence is asserted, that assertion must be supported by the facts before a case on that ground will be made for an attachment Stow v. Stacy, 9 N. Y. Supp., 1; 30 N. Y. State Rep., 308; Bennett v. Edwards, 27 Hun, 352. The evidence to establish a fraudulent intent in the sale of the merchandise wholly failed to prove it And the order should be reversed, with ten dollars costs and the disbursements, and the attachment set aside.

Ingraham, J.

The fraudulent disposition of property must appear from the affidavits upon which the attachment was granted, and we cannot consider on the appeal from this order the proceedings to dissolve the corporation commenced after the attachment was granted. The fact that the defendant had sold its property to Bates for the purpose of raising money did not of itself justify an inference of fraudulent intent.

There is nothing to show what was paid by Bates for the property, or that the amount paid by him was not properly applied by the defendants. I concur, therefore, in reversing the order and vacating the attachment.

Van Brunt, P. J., concurs in result


author: Patterson, J.

text:
    William R. Newell et al., App’lts, v. The Mayor, etc., of the City of New York, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.1
    1. Release—By contractor to municipal corporation.
    A release under seal given by contractors to the city for the amount due under the contract is ordinarily an absolute discharge of the city from liability, but such a release may be attacked on the ground that it was given by misrepresentation or fraud on the part of the city.

      2. Same.
    The alleged misrepresentation was that at the time the release was given the contractor asked whether any deduction had been made for inspectors’ fees, and received a negative answer from the representative of the city. Held, that as the jury found the instrument to be void for fraud, it was •error for the judge to hold that the release was a bar to all claims except those for inspectors’ fees, and he should have submitted the whole case to the jury on the release.

      L. L. Kellogg, for app’lts ; Edward H. Hawke, Jr., for resp’t.
   Patterson, J.

The plaintiffs, on December 24, 1888, entered into a contract with the city of New York to regulate, grade, curb and flag One Hundred and Seventieth street, from Tenth to Eleventh avenues, in that city. They bring this suit alleging two causes of action; first, that the department of public works has wrongfully detained from them a certain amount as inspectors’ fees for twenty-nine days, at the rate of $3.50 a day; and, second, that by reason of wrongful acts and interferences on the part of the municipal authorities, in suspending the work and preventing its due performance and proper completion within a reasonable time and in a right way, the plaintiffs were compelled to incur great expense in transferring their work from one kind of excavation to another, and that they sustained great loss in other respects, and for which they now attempt to hold the city liable. The original answer is not before us, but at the trial an amendment was allowed and assented to and the affirmative defenses of payment of all that was due under the contract and a release under seal were set up, and the cause was tried on those defenses. The main subject now requiring consideration is the effect of the release. A receipt was given by one of the plaintiffs for the amount due according to the strict terms of the contract, and in giving that receipt he acted for himself and under the sanction of a power of attorney which he received from his copartner. The learned judge before whom the cause was. tried held that the receipt-of itself was not an obstacle to a recovery, that it might be-explained, and he undoubtedly at One stage .of the case recognized the settled rule that where work is done by a contractor, necessitated by the wrongful acts or omissions, or even mistakes of the municipal authorities, its cost may be recovered in an action for damages, and that such contractor is not limited simply to the contract price, Mulholland v. Mayor, etc., 113 N. Y., 631; 22 N. Y. State Rep., 347; but when the answer was amended and the release was put in evidence he held that such release was an absolute bar to all claims except those for inspectors’ fees ; or in other words, he limited the right of recovery to the first cause of action.

The condition of the. proof under which the question of the effect of the release arose is" as follows, viz: under the ruling as-to the receipt, the whole case was opened on both counts of the complaint, and some evidence was given to sustain the second cause of action. When the release, was put in it was at once attacked by the plaintiff on the ground of fraud, the specification of that fraud being that it was procured from the plaintiff by misrepresentation of the officer of the city to whom and when it was given, on payment being made of the ostensible balance due the Contractors under the contract

The only evidence of the alleged misrepresentation was that at the time the paper was given the plaintiff, Freligh, asked whether or not any deduction had been made for inspector’s fees; and the answer of the representative of the city was that no such deduction was made. A witness called on behalf of the city, who had the conversation with Freligh, testified that no such conversation occurred; but on his cross-examination it was apparent that he testified not from an actual recollection of the particular conversation, but from his general course of doing business in like matters. The learned judge submitted to the jury on this testimony the single question as to whether or not any misrepresentation had been made that would affect the validity of the release on the question of the inspectors’ fees, and he declined the request of the counsel for the plaintiffs to submit to the jury any other question relating to the liability of the city for anything more than those fees.

That a release of the character given in this case is ordinarily an absolute discharge of the city from liability, and that it must be taken in its widest and most comprehensive sense, and according to its full tenor and effect, was distinctly decided by the court of .appeals in the case of Phelan v. The Mayor, etc., 119 N. Y., 86; 28 N. Y. State Rep., 683. But that case, of course, does not go to the - extent, nor, indeed, could it be well assumed on any ground,- that such a release cannot be attacked on.the claim that it' was given by misrepresentation or fraud on the part of the city.

The -learned judge on the trial assumed that it was open to attack "(as it certainly was) so far as the inspectors’ fees were concerned, but if it were open to attack on that ground, .the effect of determining that it was procured by fraud would necessarily be-to avoid the whole instrument and not merely as to the particular subject concerning which the misrepresentation was made. It was left to the jury to say on the whole evidence whether or not any misrepresentation had been made. The necessary effect of that misrepresentation would have been to avoid the whole instrument, and not merely quad a particular subject. That fraud which will vitiate an instrument absolutely nullifies it, takes it out of the scope of judicial consideration and leaves the case precisely as if no such instrument had been executed. It was evidently in the mind of the learned j udge below, that inasmuch as the only subject then under discussion between Mr. Freligh and the representative of the city was the inspectors’ fees, that the effect of the release should only be considered with reference to that one particular topic. But there can be no limitation as to the effect of a void instrument An instrument such as this is either void or valid, and if it is void, it is beyond judicial cognizance as being a factor in the case. The jury found under the instructions of the judge that the instrument was void. Their verdict cannot be supported on any other hypothesis, and that release being void, the case necessarily was relegated to the situation in which it stood as upon a simple receipt given for the amount due, which receipt of course, as the learned judge held, was open to impeachment. We do not intend to pass -upon, or intimate in any way, an opinion as to the sufficiency of the proof, or the effect of that proof, relating to the second cause of action, but we think it was error not to submit to the jury the whole case on this release. .It was really (by the ruling made) a submission of only one question to the jury and the other was eliminated from the case ; and as said before the release was either good or bad. If it were ineffectual as to the inspectors’ fees it was equally so as to the second cause of action. Therefore we think the judgment should be reversed and a new trial ordered, with costs to abide the event.

Van Brunt, P. J., and Barrett, J., concur.


author: Bartlett, J. Barrett, J.

text:
    The Lancashire Ins. Co., Resp’t, v. Robert A. Maxwell, Supt. of the Ins. Dept., App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 16, 1891.)

    Insurance—Securities deposited by foreign insurance company with THE SUPERINTENDENT—LAWS 1853, ch. 466—DEMURRER.
    When the superintendent of - the insurance department receives securities from a foreign fire insurance company in excess of the $200,000 prescribed by the act of 1853, he takes them, not as a voluntary trustee, but in his official character, and he cannot be deprived of the custody or control of any part of it by an action brought by such company the complaint in which alleges that the excess over $200,000 was held by him as a mere voluntary trustee. Such a complaint would be demurrable, as th"e assumption of a voluntary trust in the matter by the superintendent of the insurrance department is not authorized by law.
    Appeal from a final judgment entered upon an order overruling a demurrer to-the complaint.

      Isaac H. Maynard, for app’lt; George De Forest Lord, for resp’t.
   Bartlett, J.

This action cannot be maintained without holding that when the superintendent of the insurance department receives securities from a foreign fire insurance company in excess of the $200,000 prescribed by the act of 1853, Laws of 1853, ch. 466, § 23; 2 Birdseye’s Statutes, p. 1639, he takes them as a voluntary trustee and not in his public or official character. “As to the surplus of the funds held by the defendant Maxwell, over $200,000,” says the learned counsel for the respondents, “ he is a mere voluntary trustee; ” and the court below adopted this view, declaring the excess to be a mere voluntary deposit, as to which the superintendent did not stand in the attitude of a trustee appointed by the statute, with the exclusive right to be continued as such. The fund in the hands of the superintendent was treated as being divisible into two parts: one consisting of securities to the amount of $200,000, which he holds as a statutory trustee under the act of 1853; and the other made up of the additional securities deposited with him by the Lancashire Insurance Company, which he holds as a private trustee, and not in pursuance of any duty devolved upon him by law.

It does not seem to me that this construction of the statute is correct.

The act of. 1853 requires a foreign fire insurance company doing business in this state to “ deposit with the superintendent of the insurance department, for the benefit and security of policy holders residing in the United States, a sum not less than $200,000 in stock of the United States or the state of New York, in all cases to be, or to be made to be, equal to a stock producing six per cent per annum.” The act does not say precisely $200,000, or not more than $200,000, but not less than $200,000. The company must deposit as much as that and may deposit a great deal more, as the Lancashire Insurance Company has done. But I find no warrant in the language of the law itself for distinguishing between the trust upon which the superintendent of the insurance department holds the first $200,000 which he receives and the trust upon which he holds the resL The deposit is to be made for the benefit and security of policy holders residing in the United States. The complaint in this case alleges that the first sum of $200,000 was so deposited for the benefit and security of such policy holders, and then proceeds to say that the company “ from time to time deposited other stocks of the United States with the successive superintendents of the insurance department of this state, to be held by them and their respective successors in office/or the further benefit and security of their policy holders in the United States.” This is the precise trust contemplated by the act of 1853, and the aggregate securities constitute the sum not less than $200,000, of which the superintendent is the statutory trustee.-

In order to make him an unofficial trustee of a voluntary trust so far as the securities in excess of $200,000 are concerned, it is necessary to ignore the true nature of the transactions between the Lancashire Insurance Company and the various superintendents of insurance. The plain import of the allegations in the complaint is that the so called additional securities were turned over to the respective superintendents as public officers and received and accepted by them as such. There was nothing private or personal about the deposit If there had been, and a mere voluntary trust had been contemplated, non-official in its character, the securities would have been taken and held by each recipient as an individual trustee, and not in his public capacity at all, and he would have retained the securities after he went out of office, instead of turning them over to his successor. The idea of the divisibility of the fund and of a voluntary trust as to the so-called surplus does not appear ever to have been suggested until it became important to the Lancashire Insurance Company to withdraw a portion of the securities from the custody of the superintendent ; but however desirable or unobjectionable such withdrawal may be, no consideration of convenience should blind us to the true nature of the deposit

The circumstances under which the securities were put into the hands of the superintendents, as disclosed by the complaint, leave no doubt in my mind that the only trust in contemplation between the parties at any time was the statutory trust provided for in the act of 1853. The head of the insurance department became and continued and remains officially responsible for the safe keeping and proper management of the whole fund, and not merely for the $200,000 first paid in, as would be the case if the respondents were correct in their contention that the trust is purely volutitary as to the balance. If it is voluntary, it cannot be in any sense official, for the assumption of a voluntary trust in this matter by the superintendent of the insurance department is not authorized by law.

The case of Ruggles v. Chapman, 59 N. Y., 165 ; 64 id., 557, and the Matter of the Guardian Mutual Life Ins. Co., 13 Hun, 115, are authorities for the proposition which is well stated in the opinion of the learned judge at special term, “ that the court has no power to interfere with the possession or administration of securities or funds in the hands of a statutory trustee for possession and administration (the question of misconduct being eliminated), because the trusteeship is made and governed exclusively by the terms of the statute itself.” Having reached the conclusion that the superintendent of the insurance department is an official trustee as to the entire fund deposited by the Lancashire Insurance Company, it follows that he cannot be deprived of the custody or control of any part of it on any of the grounds set out in the complaint; and hence, that the complaint does not state facts sufficient to constitute a cause of action.

For these reasons, I think the judgment should be reversed.

Van Brunt, P. J., concurs.

Barrett, J.

I concur; The judgment should be reversed, with costs, and the demurrer sustained, with costs of the special term and of this appeal.