text:
    Alfred Stover, Resp’t, v. Raphael Chasse, App’lt.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    1. Tender—When not bar.
    Tender of money during the pendency of an action, not brought for the recovery of money, is no bar thereto, where the right to make a tender is not expressly given by statute.
    2. Same—Code sections.
    Sections 731 and 733 of the Code apply only to actions wherein a money judgment is demanded.
    3. Same—Summary proceedings.
    Such tender, if operative for any purpose, cannot bar the landlord’s right to the final order in summary proceedings.
    4. Same—New trial.
    After the common pleas has directed a new trial in the court below, sa amendment, setting up the plea of tender, is properly refused.

      5. Same—Costs.
    A tender, which does not include costs and expenses to date, is inoperative.
    6. Same—Payment into court.
    Payment of costs into court on the day the decision is rendered, is ineffectual.
    Appeal from a final order in summary proceedings.

      Bernard J IsecJce, for app’lt, A. G. Todd and A. G. Reeves, for resp’t.
   Bookstaver, P. J.

This matter was before us upon a former appeal, Stover v. Chasse, 6 MisC. Rep. 394; 56 St. Rep. 383, where a judgment in favor of the tenant was reversed and a new trial ordered. Upon that new trial the evidence which had been taken on the former was read as. the evidence in the case, and no new matter was introduced on the second trial except a plea of tender of $142.50, which the counsel for the landlord admitted covered the amount due to "that date as claimed by the landlord, but did not include the costs in the court of common pleas on appeal by the landlord. Therefore all the questions involved in this proceeding, except those arising out of the tender made by the tenant to the landlord, have been passed upon by this court in favor of the landlord, and are res adjudicata. We do not-think the court erred in refusing to accept the tenant's plea of tender. There is no common law principle-which will permit a tender of money during the pendency of an action to bar a proceeding which is not brought for the obtaining of money and where the right to make a tender is not expressly given by statute. Section 2231 of the Code of Civil Procedure gives the landlord the right to maintain this proceeding;and to obtain his final order pursuant to § 2249. There is no statutory authority for a tender in the proceeding except that given by § 2254 after the final order is made. If any rent whatever is due and unpaid, and there is a holding over by the tenant without permission after demand, the landlord is entitled to a warrant of dispossession unless it is stayed as provided by law. Jarvis v. Driggs, 69 N. Y., 143; Brown v. Mayor, etc., 66 N. Y., 385, 390; Durant Land Co. v. East River El. L. Co., 25 St. Rep. 928; Witty v. Acton, 58 Hun, 552; 35 St. Rep. 949. But the tenant claims the right to make the tender and plead it under § 2244 of the Code as amended by the Laws of 1893, which allows substantially the same defenses that could be interposed if the proceeding were in a court of record. But even in a court of record a tender cannot be made and pleaded after the action is commenced, except in the cases specified by § 731 of the Code, and that section allows such tender only in those actions in which !S the complaint demands judgment for a sum of money only;” Clement v. N.Y.C. & H. R. R. R. Co., 30 St. Rep. 713. Sections 731 and 733 of the Code apply only to actions wherein a-money judgment is demanded. And it is obvious that the-recovery of rent is not the primary ■object of summary proceedings but the recovery of the possession of the premises is. The tender in this case could not be made except as prescribed by the statute; Wilson v. Doran, 110 N. Y. 101, 108; 16 St. Rep. 852. A plea of tender after sqit brought, does not bar the action; it iherely prevents further costs and interest from accruing; Hills v. Place, 7 Robt. 389; 48 N. Y. 520; Lawson’s Eights, Remedies and Practice, vol. 5, §§ 2526, 2527 and note; 46 Amer. Dec. 347. But, even if we are wrong in this, we still think the justice was right in refusing to admit the plea, because the order of this court directing a new trial in the court below meant that such hew trial should be had upon the facts as they existed when the case before the court for review, and an amendment which will change the nature of the action or defense is generally refused after a new trial has been ordered; Farmers Loan & Trust Co. v. United Lines Tel. Co., 47 Hun, 315; 14 St. Rep. 269; Berford v. N. Y. Iron Mine, 29 St. Rep. 207; Palen v. Bushnell, 18 Civ. Pro. 56; Holly v. Graf, 29 Hun, 443. We think, further, that, even if the court below had the authority to allow the plea of tender and had allowed it and held the tender sufficient, such tender could not have barred the landlord’s right to the final order, but would have simply deprived him of the costs of the new trial. A plea of tender is an unequivocal admission of the justness of the plaintiff’s claim to the extent of the sum tendered. So conclusive is the admission that if the tender is refused and the'parties proceed to trial, and it shall turn out that the plaintiff is not entitled to anything, the plaintiff shall have a verdict for the sum ten- ' dered; Roosevelt v. N. Y. & H. R. R. Co., 45 Barb. 554, 556; Euton v. Wells, 82 N. Y. 576. But, again, the tender was manifestly insufficient. On the former appeal, the judgment was reversed, with costs to the landlord to abide the event. The tenant tendered to the plaintiff and paid into court the sum of $142.50 only, which included the rent- to date and interest, and the costs in the court below, but did not include the costs on the first appeal.' These were given to the plaintiff to abide the event. The tender if accepted, would have decided the proceedings in plaintiff’s favor and the costs of the first appeal would then have been his. A tender which does not include costs and expenses to date is inoperative ; Matter of Clarke, 40 St. Rep. 12, 16. The tenant’s payment of these costs into court on the day the decision was rendered by the justice, is also ineffectual; it does not appear whether the tender was made before or after the decision, but that is immaterial as it was concededly not made until after the case had been submitted to the justice for his consideration. The appellant contends that it was error to permit the questions put to a witness upon the first trial as to the amount of rent due, and that this final order should be reversed on that account. But we do not think any such result should follow, as it is manifest these questions and answers did the defendant no harm. The final order must, therefore, be affirmed, with costs to the landlord; but, of course, the tenant may take advantage of § 2254 of the Code and stay the execution of the warrant by the payment of all rent, interest and costs to that date.

Bischoff, J., concurs.


source: Caselaw Access Project

author: Bookstaver, P. J.

license: Public Domain

text:
    Charles Tange, Resp’t, v. The New York and New Jersey Investment Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    Appeal—New trial.
    Where the jury disregard the instructions of the court and find a verdict without evidence to support it, a new trial will be granted.
    Appeal from a judgment of the district court in the city of New York for the first judicial district.

      Fromme Bros., for app’lt; J. Newton Williams, for resp’t.
   Bookstaver, P. J.

This action was brought to recover commissions claimed to have been earned by respondent as broker in effecting a sale of real estate and was tried by the court with a jury. From the evidence it seems that the respondent acted as agent for the appellants under a written contract by which he was to receive thirty per centum on all sales of real estate effected by him. The claim sued upon was for commissions on the sale of ten lots, five sold by appellants to one Linke, and five to one Reinhardt. On the trial no claim was made that these were effected by the respondent personally, but he claimed they were effected through his sub-agent one Zittsler. There is nothing in the evidence that in any way connects either him or Zittsler with the sale of the five lots to Reinhardt. On the other hand, the appellants proved by Reinhardt himself that he purchased his five lots' directly from the appellants, and that he never saw the respondent, nor was he induced to buy the lots through the efforts of Zittsler. While the charge of the court to the jury was fair and clear on the questions of fact raised by the testimony, it is manifest that the jury disregarded his instructions and found a verdict as to this part of the claim without evidence, to support it. As to the five lots sold to Linke, respondent does not claim that he sold them himself, but claims through his sub-agent, Zittsler. Zittsler’s testimony on the subject is very indefinite and shadowy. Besides it was directly contradicted by the testimony offered by defendant, and we therefore thind no injustice can be done in reversing the judgment entirely and directing a new trial, with costs to the appellants.

Bischoff, J., concurs.


author: Bischoff, J.

text:
    Giovanni Amato, an Infant, by his Guardian ad litem, etc., Resp’t, v. Sixth Avenue Railroad Company, App’lt.

      (Pew York Common Pleas, General Term,

      Filed June 4, 1894.)

    Railroads — Trespassers.
    The fact that a person isra trespasser in boarding a car, does not lawfully expose him to ejectment by unusual means or excessive force, nor license the company, or its servants, unnecessarily to inflict upon him bodily injury.
    Appeal from a judgment for plaintiff which was rendered upon a verdict in his favor. Appeal also from an order which denied defendant's motion, upon the minutes* for a new trial. Action to recover damages for personal injuries sustained by the plaintiff in being forcibly ejected from one of the defendant’s cars by the driver thereof.

      Wm. S. Cogswell, for app’lt; William T:L Gibson (2?. if. Porters of counsel), for resp’t.
   Bischoff, J.

In response to the call of a passenger, and intending to supply the latter with a paper, the plaintiff, a newsboy, jumped aboard one of the defendant’s cars. While standing on the front platform of the car, in the act of supplying the passenger, the plaintiff was ordered off by the driver. The lad begged to be permitted to remain pending the passing of a truck, and did not at once leave the car, which was moving at the time. Heedless of the appeal the driver violently pushed the lad, who fell off and under the car, thus sustaining the injuries, which have made him a cripple for life. True, the driver called as a witness for the defendant, denied that he pushed the lad, but there is nothing so intrinsically improbable in the latter’s version of the accident that in crediting him we may say that a verdict in his favor was against the preponderance of evidence. The defendant did not, when the introduction of evidence for both sides was concluded,, ask that a verdict be directed in its favor. Heither was the motion for dismissal of the complaint renewed. It was conceded, therefore, that the evidence was sufficient to require its submission to the jury. Paige v. Chedsey, 4 Misc. 183 ; 53 St. Rep. 190; Meyers v. Cohn, 4 Misc. 185; 53 St. Rep. 223. We assume that in boarding the defendant’s car, not intending to become a passenger, the plaintiff for the time being was a trespasser. That fact, however, did not lawfully expose him to ejectment by unusual means or excessive force, nor license the defendant, or its servants, unnecessarily to inflict upon him bodily injury, Filkins v. People, 69 N. Y. 101; Kiff v. Youmans, 86 N. Y. 324; Loomis v. Terry, 17 Wend. 496; and whether or not the force used was excessive, or the means resorted to for the plaintiff’s expulsion were unusually dangerous and menacing to life or limb, was in view of all the circumstances, a question of fact for the jury. Cooley on Torts, 2nd ed., pp. 194, etc. Defendant may lawfully prevent access by a trespasser to its cars; and if access has been gained it may lawfully expel the trespasser, using for that purpose only necessary force, in view of all the circumstances, and resorting to no means which unnecessarily menace the life or limb of the trespasser. It may lawfully delegate its authority-in that regard to its servants, and qui fácil per alium, facit per se. Broom’s Maxims, pp. 524, 525 ; Cooley, on Torts, 2d ed., pp. 625, etc. Authority from the defendant to its driver to expel trespassers is fairly to be implied from the employment. Wood’s Master and Servants, pp. 524, etc.. Hence, in ejecting the plaintiff from the car, the driver was acting within his employment, and the rule respondeat superior applies. To that effect are the adjudged cases, Rounds v. D., L. & W. R. R. Co., 64 N. Y. 129 ; Hoffman v. N. Y. C. & H. R. R. R. Co., 87 N. Y. 25; Clark v. N. Y., L. E. & W. R. R. Co., 40 Hun, 605; 2 St. Rep. 249; aff’d, 113 N. Y. 670; 23 St. Rep. 994; Day v. The Brooklyn City R. R. Co., 12 Hun, 435; aff’d, 76 N. Y. 593.

The judgment and order should be affirmed, with costs.

Bookstaver, P. J., and Pryor, J., concur.


author: Giegerich, J.

text:
    George Baber, Resp’t, v. The Broadway and Seventh Avenue Railroad Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    1. Evidence—Declarations out op court.
    In contradiction of evidence tending to show that the account of the transaction, given by the witness, is a fabrication of a late date, it may be shown that the same account was given by him before its ultimate effect and operation, arising from a change of circumstances, could have been foreseen.
    3. Same.
    To come within the above exception, it is not necessary that there is a direct charge of fabrication.
    Appeal by the defendant from a judgment, entered upon the verdict of a j ury, and from an order denying a new trial.
    The nature of the action and the material facts are sufficiently stated in the opinion.

      Root & Cole (Henry L. Stimson, of counsel), for app’lt; Lamb, Osborne & Petty. (Robert D. Petty and Gilbert D. Lamb, of counsel), for resp’t.
   Giegerich, J.

This action was brought by the plaintiff to recover damages for loss of the services of his son, alleged to have been sustained in consequence of the negligence of the servants of the defendant company. The answer was a general denial.

On the evening of April'9,1891, George L. Baber, a son of the plaintiff, and who was then eleven years of age, was on Seventh avenue, near Twenty-fourth street, selling newspapers; as a car of the defendant approached a passenger on the front platform of the car beckoned to the boy to bring him a newspaper; the latter got upon the front platform after the car had come .to a stand still and sold a newspaper to the passenger in presence of the driver. The boy, who was the only witness of the accident produced by the plaintiff, testified that while he was occupied m making change the car got under considerable headway, and when near Twenty-third street he asked the driver to stop the car, which was going pretty fast at the time. The driver answered, “Ho; jump;” the boy then repeated his request twice and got the same answer, and then the driver stooped down and picked up his whip, and the boy believing that the driver was going to strike him with the whip jumped off the car, fell, was run over and his right arm was fractured and lacerated. That after the accident he was carried to the sidewalk and from there taken by a policeman to a drug store. That he was then taken to the hospital in an ambulance, where he remained for seven weeks, during which time his mother visited him daily. On his cross-examination the boy denied having said, “ I won’t do it again,” in the presence of the policeman and the conductor of the car; and further testified that he told the policeman who was taking care of him, that he had asked the driver to stop and that he woud not stop for him. • On his re-direct examination the boy further testified that the policeman only asked him where he lived: that he recollected what he said to him; that the policeman asked him how he got hurt, and the boy told the officer that he had sold a newspaper to the passenger and asked the driver to stop the car, the latter saying, “No, jump.” Dr. John McGrath, a witness called by the plaintiff, testified that at the time of the accident he was a surgeon in the New York hospital, to which the boy was brought in an ambulance ; that upon examination he found the boy suffering from a compound fracture of the right arm at the joint between the middle third and the upper third. The witness testified at length as to the nature of the injury and the course of treatment, and that the boy came to the hospital on April 9, 1891, and was discharged on May 27, 1891. Upon cross-examination the witness testified: “ I am not prepared to say that the boy made a statement at the time he was taken to the hospital on A.pril 9th.”

The defendant called as witnesses the persons named below, who severally testified, in substance, as'follows: James Reynolds, testified, that he was the passenger who bought a newspaper from the plaintiff’s son; that after giving him the required change, the boy jumped off the car with his back towards the horses and facing the car; that he did not hear the boy ask the driver to stop, and that the boy did not ask the driver to stop; that he did not hear the driver tell the boy to jump off, and that the former did not tell the latter to jump off: that the driver did not stoop down and pick up the whip to hit the boy ; that immediately on giving the witness his change, the boy got off the car. On cross-examination, the witness denied having said to the plaintiff the day after the accident, that if the driver had stopped as the boy had asked him he would not have been hurt. Joseph F. Wild, testified, that he was the conductor of the car in question, but was no longer in the defendant’s emuloy. He gave the following version of the accident: “We had just gone about thirty or forty feet below the lower crossing when I saw a little boy on the front platform looking all around, and I got on the step to chase him off as it is against the rules of the company to allow any boys on the front platform. I knew it was not a passenger because it would have been higher standing on the step. Ho was on the step, turned well around, and taking hold with his right hand of the handle of the car on the dash board, his back to the horses and facing the car, and he got off backwards; and as he got off he fell, and the hind wheel struck him. He fell this way (indicating), right out, and it was his right hand that got hurt. As soon as I saw that, I gave the danger signal for the car to stop, and it stopped about three feet afterwards. The car wasn't going very fast." The witness further testified, that when the boy got off he (the witness) was on the back platform; that he did not know whether there was any conversation between the driver and the boy, nor whether the driver chased the boy off or not. He also testified, “ I asked the boy as I picked him. up as goon as I picked him up he said, “ I won’t do it any more;” He acted as if he was afraid, because, when I made a motion towards him to pick him up, the boy tried to get on his feet, and he said, “ Ob, mister, I won’t do it any more.” Paul Eowitz, testified, that he was the driver of the car; but he had severed his connection witli the defendant nearly three years; that he did not see the boy until the officer called his attention to the accident, and that lie did not say or do anything to the boy to cause him to jump off the car. Edward A. Collins, testified, that he was a police officer and had charge of this case. That he did not see any part of the accident; that he asked the boy “ how he came to get hurt, was pushed or shoved off the car, and he sajd no, that he fell.” He further testified: “The boy didn’t say to me that he asked the driver to stop and the driver told him to jump, nor anything like that, in substance. • *- * * • The boy was suffering pain at that time." On cross-examination, the witness testified, among other things: “I did not go to the hospital, I don't know what statement the boy made at the hospital.” Police officer, Charles Baxter testified, that when the accident happened he was standing on the southeast corner of Seventh avenue and Twenty-third street; that he noticed the boy jump off the car; that he was on the opposite side of the car and could not say whether the boy jumped backwards or forwards; nor what part of the car struck the boy. Then he overheard the conversation between the other officer and the boy. J’The former asked the latter how he got hurt, and the boy said he got hurt by jumping off the car. Hi rebuttal of this testimony, the plaintiff r.ecalled his son, who testified that he recollected the statement made by him at the Hospital on the day of the accident; and then this question was put to him by plaintiff’s counsel: “Won’t you tell the jury what this statement was?” This was objected to by defendant’s counsel as incompetent, immaterial and irrelevant. The objection was overruled, and defendant’s counsel excepted to the ruling. The witness answered to the same effect as upon his original examination, and counsel for the appellant insists that error is predicable of the admission of the evidence in question. The record shows, that the learned trial judge admitted the evidence referred to not as evidence of the facts of the accident; but for the purpose of rebutting the suggestion or intimation that might be raised by the testimony that the boy’s story was a recent invention. Proof of declarations made by a witness out of court in corroboration of testimony given by him on the trial of a cause, is as a general and almost univer-’ sal rule inadmissible. To this rule however, there seems to be exceptions, and that under special circumstances such proof will be received ; as where the witness is charged with giving his testimony under the influence of some motive prompting him to make a false or colored statement, it may be shown that he made similar declarations at a time when the imputed motive did not exist. So in contradiction cf evidence tending to shoiv, that the account of the transaction, given by the witness, is- a fabrication of late date, it may be shown that the same account was given by him before its ultimate effect and operation arising from a change of circumstances could have been foreseen. Robb v. Hackley, 23 Wend. 56 ; In re Will of Hesdra, 119 N. Y. 618 ; 28 St. Rep. 810; reported in full 2 Silvernail’s Ct. of App. Rep. 499, and citations. In order to come within the above exceptions to the rule, it is not necessary, as contended by the appellant’s counsel, that there be a direct charge of fabrication. It is sufficient if the impeaching evidence tends to show, that tlje account of the transaction given by the witness is a recent fabrication or was prompted • by corrupt motives, In re Will of Hesdra, supra, Herrick v. Smith, 13; Hun, 446, or where the object of the cross-examination is to show that the testimony of the witness is an after-thought and a subsequent invention. Gilbert v. Sage, 57 N. Y. 639, 640; Wray v. Fedderke, 11 J. & S. 335, 340 ; Commonwealth v. Wilson, 67 Mass. 337, 340. In the case before us, it is apparent from a careful reading of the proceedings and evidence, that the object of the question put on the cross-examination of the hospital surgeon with respect to any statment made by George L. Baber, the witness above referred to when he was brought to the hospital, the cross-examination of the boy, and the defendant’s direct examination of its witnesses all had a tendency and were calculated to impeach the boy’s testimony and to stamp it as an after-thought and a fabrication of recent date; and under these circumstances and within the authorities above cited, it was proper to show, in answer, that he had previously told the same story. The appellant’s counsel also claims that the trial judge did not throw around the testimony in question the proper safe-guards ; but the record shows that the learned trial judge expressly told the jury, that the statment made by the witness was not in evidence ; in other words that it was not to be taken as evidence of the fact of the accident; but simply as evidence of the boy’s consistency and truthfulness. This is in harmony with the design of the rule enumerated by the court in Herrick v. Smith, supra, which is to enable the witness to relieve himself from an apparently dishonest motive or imputation, in order that his testimony may not be unjustly criticized or discredited. (Brady, J.) The record discloses that other exceptions were taken by the defendant, at the trial; but they have not been relied upon on this appeal. At all events we are satisfied after a careful examination of the printed case on appeal that the rulings of the trial judge were in all respects correct; and that in view of the nature of the accident the amount of damages awarded by the jury is not excessive. The judgment should therefore be affirmed, with costs. Daly, 0. J., and Bischoff, J., concur.


author: Pryor, J.

text:
    Charles E. Bonwell, Resp’t, v. Thomas Auld, App’lt.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    1. Brokers—Commissions.
    A broker acting as a mere middleman to being the principals together, may bargain for a commission from both.

      2. Same—Double employment.
    The defense of a double employment is unvailable if not pleaded.
    3. Same.
    Employment by one principal of a broker with knowledge of his employment by the other, defeats the defence.
    4. Same.
    So likewise, a promise to pay by one principal after knowledge of payment of a commission by the other, operates a waver and ratification of the double employment.
    Appeal from judgment of general term of city court affirming judgment of verdict. Action for commission in effecting an exchange of defendant’s real property. The opinion states the case.

      Thomas H. Friend, for app’lt; Thomas J. L. McManus, for res’pt.

      Affirming 57 St. Rep. 573.

   Pryor, J.

The appellant asks us to reverse the judgment on the ground that the verdict is against the weight of evidence. Surely he should know that on appeals from the city court we have no jurisdiction to review the facts. Mackie v. Egan, 6 Misc. 95; 55 St. Rep. 493. Besides, the certificate is that the case contains all the testimony, and it is settled by express adjudication that this is not equivalent to a statement that the case contains all the evidence. Hyman v. Friedman, 45 St. Rep. 636; 18 N. Y. Supp. 446. , Conceding, for argument, that an allegation of indebtedness is only an averment of a legal conclusion, still, as the complaint credits the defendant with a partial payment of the $350 claimed, the plain implication is of an unpaid balance of the amount. Marie v. Garrison, 83 N. Y. 14. Hence, the motion to dismiss for insufficiency of the complaint, was properly denied. But, it is said the plaintiff should have been non-suited for insufficiency of evidence. The retainer of the plaintiff and the rendition of the service were clearly established. And the employment was to effect an exchange of defendant’s property. The ailegation was of a promise to pay three hundred and fifty dollars for the service, and so was the proof. Nor, since the service was rendered at plaintiff’s request, was the contract without consideration. The law implied a promise to pay, Baer v. Hoch, 2 Misc. 334, 340: 51 St. Rep. 427, and defendant’s express promise of a certain sum was evidence of the' value of the service. Upon’a complaint in special assumpsit a recovery can be had on a quantum meruit, unless the objection of variance be taken-; Domschke v. Met. El. R. R. Co., 57 St. Rep. 189; 26 N. Y. Supp. 840; and no such contention is disclosed in the record.

Again, the appellant argues that the plaintiff could not recover, because of his charging commissions against both the principals. But the defense was not pleaded. Duryea v. Lester, 75 N. Y., 442. The evidence is that defendant was informed of the fact, and assented to it. Rowe v Stevens, 53 N. Y., 621. Morever, it appears that the parties themselves negotiated the terms of exchange, and an agent may well act for both principals in a ministerial capacity as middleman. Krauss v. K. B. Co., 142 N. Y., 70; 58 St. Rep. 316; Stewart v. Mather, 22 Wisc. 355 ; Alexander v. North Western, etc., 57 Ind., 478; Rupp v. Sampson, 16 Gray, 401. In any event, after knowledge of plaintiff’s receipt of pay from the other party, the defendant over and over again promised his portion of the commission. Indeed, he actually paid something. A more complete ratification it is difficult to conceive. The contention that a verdict for $345 is excessive in face of the fact that the defendant repeatedly promised to pay $350, can hardly be complimented with the epithet of plausible. On appeal from the city court 'errors in evidence are not subject to revision by us, without appropriate exceptions. Schwinger v. Raymond, 105 N. Y., 648, 649 ; 7 St. Rep. 544. So far as we are permitted to examine the record, we perceive no error.

Judgment affirmed, with costs.

Bookstaver, P. J., and Bischoff, J. concur.


text:
    John Duggan, Resp’t, v. The Third Avenue Railroad Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

      1. Master and servant—Risk.
    The risks, which a servant assumes as incident to his employment, are such only as exist after the master has discharged the duty of reasonable care to prevent them.
    3. Same.
    A servant has a right to confide that his master has discharged the duty of reasonable care for his protection; and hence, is not held to the same vigilant scrutiny fo,r defects. It is only to dangers patent to ordinary observation, that he incurs an equal responsibility with the master.
    Appeal from judgment of general term of city court affirming judgment on verdict. The opinion states the case.

      Hoadly, Lauterbach & Johnson (Frederick P. Delajield and Hen= ry L. Scheuerman, of counsel), for app’lt; Louis J. Grant, for resp’t.

       Affirming 58 St. Rep. 816.

   Pryor, J.

The judgment on appeal was recovered for an injury sustained by a servant from a displaced rail on the master’s premises. While engaged in his employment the plaintiff stumbled against the rail and fractured his wrist. By the law of New York, “a master is responsible to his servant for injuries received by the latter from defects in the building in which the services are rendered, which the master knew or ought to have known.” Ryan v. Fowler, 24 N. Y. 410; repudiating the authority of Seymour v. Maddock, cited by appellant. The condition of the rail, the cause of plaintiff’s fall, was an undoubted defecj; and 'the point in controversy is whether the defendant knew or should have known it. Its existence for two weeks before the accident, was a circumstance from which the jury might well infer negligence in not discovering the defect. In Mille v. Manhattan R. R. Co., it was not apparent for what length of time the defect had continued. The displaced rail was not a peril incident to the employment. The hazards which a servant assumes, are such only as exist after the master has discharged the duty of reasonable care to prevent them; and here the jury, upon sufficient evidence, have found the fact of defendant’s negligence in not observing and repairing the condition of the rail. The more difficult question touches the contributory negligence of the plaintiff. The fallacy of the appellant’s argument lurks in a misconception of the legal proposition that the master is not responsible for a defect equally open to the knowledge of the servant. The servant has a right to repose in the confidence that the master has performed his duty; and hence, is not held to the same vigilant, scrutiny for defects. Kehler v. Schwenk, 31 Am. St. Rep. 777. The principle imports that by venturing upon perils patent to ordinary observation, the servant is either careless or reckless, and so incurs the imputation of contributory negligence. The evidence is that some time before the plaintiff observed the rail, but . that it was not then “lifted upthat he had been about the place only a little for the past two weeks; and that at the time of the accident no light was near. Under the circumstances, whether the plaintiff failed to observe the defect because of negligent inattention, was a question for the jury. Dale v. City of Syracuse, 54 St. Rep. 381, 383; Palmer v. Dearing, 93 N. Y. 10. “If there is any doubt, however slight, either as to what facts are established by the testimony, or as to the conclusion in respect to the fact of negligence that may be drawn legitimately from the circumstances proved, by the average of men of common sense, ordinary experience, and fair intentions, the case should not be taken from the jury.” Bills v. N.Y.C.& H. R. R. R. Co., 84 N.Y. 5, 10. The error predicated of the ruling on a request to charge, is not apparent. The request was, “before the plaintiff can recover the jury must be satisfied of three things: 1st. That the rail was loose and dangerous; 2d, that the defendant knew or ought to have known that the rail was loose and dangerous; 3d, that Duggan had nbt equal means of knowledge.” To which the court responded: “Well, the defendant must have known that the rail was dangerous before it could be charged with negligence; but that notice may be actual or constructive.” The appellant complains that the court omitted to charge the words “that Duggan had not equal means of knowledge.” Undoubtedly the intention was so to direct the jury. The court did neither refuse nor modify this particular proposition in the request; but by the plainest implication accepted it. If the defendant desired a more explicit instruction, its duty was to suggest the omission to the court, and solicit a ruling on the clause of the request that was either adopted or had escaped attention. The main charge was full and sufficiently favorable to the appellant. The cause has been twice tried ; each time with a verdict in a small amount for the plaintiff. There should be an end of the litigation.

Judgment affirmed, with costs.

Bookstaver, P. J., and Bischoff, J., concur.


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    Heinrich Fahr, App’lt, v. The Manhattan Railway Company, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

      Í. Pleadings—Complaint—Negligence.
    In an action for injury to the person, a complaint is bad in substance which omits to charge the defendant with a negligent act causing the injury ; or, which shows that negligence of the plaintiff concurs with negligence of the defenuant in causing the injury.
    2. Negligence—Contributory.
    The voluntary boarding of an elevated railway train when in motion is an act of contributory negligence.
    8. Same.
    An invitation by the defendant is no excuse to the plaintiff for incurring á peril, as obvious to him as to the defendant.
    Appeal from judgment on dismissal of the complaint in an action for negligent injury to the person. So much of the complaint as is material here follows : “ Sixth:—That as the plaintiff was in the act of boarding said train as aforesaid, he succeeded in getting upon one of the platforms of one of the cars of said train partially ; that said car at said platform had a gate as required by law; that at the time when plaintiff so succeeded in getting upon said platform, said gate was open and had not been closed ; that when he so got on, plaintiff believed and he was under the impression that said train had not yet started, but as he has been informed since the happening of the injury hereinafter mentioned and verily believes said train had been started in motion directly before plaintiff stepped upon the platform of said car; plaintiff, however, had no knowledge of any such motion when he so attempted to board said train, and he has no knowledge thereof now, excepting that he is informed thereof, and verily believes that the said train was so started in motion ; that when he so got on there was no perceptible motion to the train, and plaintiff did not know or was not in any way informed that said train was either in motion or that any signal had been given to cause it to move, but on the contrary when he so got on he did so upon the invitation of the defendant and upon the belief that said train was at a standstill; that before plaintiff had an opportunity of fully getting upon said train he was thrown therefrom and dragged along the defendant’s platform on said station and he was injured on the left side of lrs person internally, and upon his left leg externally, and was thereby prevented, and will thereby be prevented in the future, from devoting himself to his usual occupation, and he thereby suffered, and will thereby suffer, great pain in his body', and he was, and will be put to expenses for medical aid and medicines, in all to his damage twenty thousand dollars.
    Seventh: — That the plaintiff was injured solely by reason of the carelessness, negligence and neglect of duty of defendant, and by reason of defendant’s neglect in starting said car before such gate was closed.”

      Leopold Leo, for app’lt; Davies, Short & Townsend (Julian T. Davies and Brainard Tolies, of counsel), for resp’t.
   Pryor, J.

A complaint must contain a statement of the facts constituting the cause of action. Code, § 431. Though concise, it must still present every constituent of the right and the wrong on which the action proceeds. A requisite fact may appear by implication as well as by express allegation ; but the intendment must be reasonable and fair, Kain v. Larkin, 141 N. Y. 144; 56 St. Rep. 675 ; Sanders v. Soutter, 126 N. Y. 193; 37 St. Rep. 1; Marie v. Garrison, 83 N. Y. 14; Milliken v. W. U. Tel. Co., 110 N. Y. 403; 18 St. Rep. 328, and a construction in favor of the plaintiff can-be such only as the language requires. Nat. City Bank v. Westcott, 118 N. Y. 468; 29 St. Rep. 806; Magauran v. Tiffany, 62 How. 251. The liberal construction of a pleading enjoined by .the Code, is applicable only to matters of form; the1' rule still is that an ambiguous averment must be taken against the party advancing it, and that the omission of an essential fact may not be supplied by inference. Clark v. Billon, 97 N. Y. 370. Consistently with the prescribed canons for the construction of a pleading, it is impossible to collect from the complaint under criticism, the essential elements of an actionable wrong; namély, negligence of the defendant and absence of contributory negligence on the part of the plaintiff. Conceding negligence in starting the train before the gate was closed; manifestly that starting was not the cause of plaintiff’s fall; for, the train was already in motion when he boarded it. An act of negligence unconnected with the injury is necessarily harmless; but, negligence and consequent injury must concur in the creation of a cause of action. The statute requires further, that “ the gate shall be kept closed while the car is in motion.” Chap, 565, § 139, Laws of 1890. Assuming negligence in leaving the gate open, and still it is not apparent that such negligence was the cause of the injury. But for the open gate the plaintiff could not have boarded the car; and - hence the open gate was a condition of the injury. It is not pretended, however, that the open gate was the cause of the injury. What was that cause ? Upon this, the essential point, the complaint is silent; and we are unable, by any legitimate inference from its allegations, to ascertain the act of negligence on the part of the defendant that caused the plaintiff’s injury. Speculation may suggest any one among innumerable facts of imagination as the immediate and responsible cause of the injury; but the law requires that cause to be stated in the pleading and not left to conjecture. Dobbins v. Brown, 118 N. Y. 189 ; 28 St. Rep. 957. That the motion of the car was the cause of his fall, the plaintiff omits, ex industria, to aver. Accepting, however, the motion of the car as the cause of the injury, then as plaintiff boarded the caf while in motion, he voluntarily subjected himself to the operation of the agency by which he suffered the hurt; and so his own negligence was a contributing cause of his injury. This conclusion the plaintiff seeks to avoid by the allegation that the motion of the car was so slight and slow as to be imperceptible. But, if the motion was so slight and slow as to be imperceptible, its energy must have been inadequate to the effect supposed; namely, throwing plaintiff down and dragging him along the platform. On the other hand, were the velocity of the car sufficient for such result, then, either he observed, the motion and voluntarily incurred its hazards; or else oihitted the exercise of the care and vigilance which the law exacted of him. Upon either supposition his own negligence was a cause of his injury. Hunter v. Cooperstown, etc., R. R. Co., 126 N. Y. 18; 36 St. Rep. 367; Solomon v. Man. R. R. Co., 103 N. Y. 437 ; 3 St. Tep. 636; Phillips v. R. & S. R. Co., 49 N. Y. 177. To escape the imputation of contributory negligence, plaintiff contends further, that he was invited to board the moving train; but what of it? If the motion of the train was so faint as to be imperceptible by the plaintiff, it was equally imperceptible by the defendant; and the assurance of safety in boarding the car implied by the invitation, was a prudent, not a negligent act. On the other hand, if the velocity of the car was obvious and dangerous, no invitation to enter could justify the plaintiff in encountering the manifest peril. 1 Shearman & Redf. on Neg., § 91. The dilemma is not to be eluded: If, upon the complaint, the motion of the train be not the apparent cause of plaintiff’s injury, no actionable negligence is imputed to the defendant, IE such motion he the alleged cause of plaintiff’s injury, then the complaint shows the injury to be the effect of his contributory negligence. Upon either hypothesis, the complaint was rightly dismissed.

Judgment affirmed, with costs. Daly, O. J., and Bisohoff, J,, concur.


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    John E. Foley, App’lt, v. Abraham G. Jennings, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    1. Bill of particulars—Broker’s commissions.
    In an action for commissions under an engagement to find a person willing to buy for a certain sum on such, terms as the owner himself might negotiate, a bill of particulars, stating where the alleged sale was made, by whom made, when, where and how the purchaser was to pay for the property, and as to the amount of capital stock of the proposed company, and the proportion the owner agreed to take in payment, is properly denied.
    S. Same
    Where the broker claims that he was to have an option for the sale of the property at a designated price, the owner is entitled to be apprised of the particular option which the broker claims he was to have.
    Appeal from order for bill of particulars.

      Henry Schmidt, for app’lt; A. Prentice, for resp’t,
   Pryor, J.

In substance and effect the complaint alleges that the defendant retained and agreed to pay him a named commission for procuring a purchaser of property at a designated price, all other terms of sale, however, to be negotiated between the defendant and the purchaser; that the defendant stipulated to give the plaintiff an option for the sale of the property at the specified price; that the plaintiff found a person willing to take the property at the price ; that he so advised the defendant and demanded the agreed option; that the defendant refused to give the option and to consúmate the sale ; and for the breach of the contract the plain'.iff demands -damages in the amount of the promised commission. Obviously the action is in contract. The answer is virtually a general denial. The defendant demands a bill of particulars, stating where the alleged sale was made. The complaint says in terms that “ all plaintiff’s firm were to do was to obtain a person or customer who was willing to purchase at the figures mentioned, but as to the terms and manner of payment, and all other terms and conditions of sale, they were to be arranged between the defendant and the purchaser.” Thus, the plaintiff neither agreed to make a sale, nor alleges a sale; but avers only an engagement to find a person willing to buy for a certain sum on such terms as the defendant himself might negotiate. As no sale has been made, where it was made is not to be told. Secondly, the defendant wants to know whether the sale was made by a member of plaintiff’s firm, and if not by whom. Again, the answer is that that no sale was made or is alleged ; and hence it is impossible to say who made the sale. If otherwise, it would be immaterial by what particular person the negotiation was conducted; and to compel his disclosure would only put defendant in possession of plaintiff’s evidence, which is never the office of a bill of particulars. Roberts v. Cullen, 40 St. Rep. 672. Thirdly, ■ defendant requires to be informed when, where and how the purchaser was to pay for the property. It is an answer to this de- . mand to say, that the terms of payment were to be settled between the defendant and the purchaser; and that the defendant declined the sale, no time, place or mode of payment has been determined. Fourthly, so as to the amount of capital stock of the proposed company, and the proportion defendant agreed to take in payment; this too was a detail of arrangement between the defendant and the purchaser, which, as the sale went off, was never adjusted. As to the option, our conclusion is different. Surely its terms were understood between the parties; and it is due to the defendant that he be apprised of the particular option which the plaintiff claims he was to have.

Order modified in conformity with the opinion; and as so modified affirmed, without costs to either party as against the other.

Daly, O. J., and Bischoff, J., concur.


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    Mary Hanlon, Resp’t, v. The Metropolitan Life Insurance Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    1. Pleadings—Counterclaim.
    In an action upon a policy of insurance by the beneficiary, the company may counterclaim a judgment against such beneficiary, assigned to it prior to the commencement of the action.
    2. Same.
    The persons, against whom a personal indebtedness shall not be available to the defendant as a counterclaim, are such as may be properly classed as “trustees of express trusts.”

      3. Same—District Court.
    Section 502 of the Code, it seems, is not applicable to the district courts in the city of New York.
    4. Parties—Trustees of express trust.
    A valid promise by the beneficiary to pay the funeral expenses of the insured does not render either the representatives or the undertaker beneficially interested in the policy.
    Appeal from a judgment of the district court in the city of New York, for the seventh judicial district, rendered by the justice, without a jury, in favor .of the plaintiff.
    Action upon a policy of life insurance; the defense being a counterclaim upon a judgment against the plaintiff and assigned to the defendant.

      C. N. Bovee, Jr,, and J. McG. Goodale, for app’lt; Thomas Gilleran, for resp’t.
   Bischoff, J.

The plaintiff sued upon a policy of insurance upon the life of her brother and in which she was designated as the beneficiary. As a counterclaim defendant interposed a judgment obtained against the plaintiff and assigned to the former. By stipulation of the parties, made upon the trial and appearing in the return, it was admitted the plaintiff was entitled to recover the amount of the policy in suit, there being no defenses thereto, and upon the other hand, the plaintiff conceded that the judgment upon which claim w.as made by the defendant, had been duly assigned for sufficient consideration, and that the plaintiff was the person against whom such judgment had been obtained. Upon the trial it was conceded furthermore, on the part of the plaintiff, that, were she suing for her individual benefit, the amount of the counterclaim, in excess of the sum due upon the policy, should properly be allowed in judgment for the defendant. Wells v. Henshaw, 3 Bosw. 625; Clark v. Story, 29 Barb. 295; Code Civ. Pro., § 1909. Such being the attitude of the parties, evidence was given on behalf of the plaintiff, under objection, showing an oral agreement between the plaintiff and the insured which was to the effect that, in consideration of the policy and the payment of the premiums as they accrued from time to time, and the receipt of the proceeds of the policy upon the death of the insured, the plaintiff would defray the funeral expenses of the insured. It was also part of such oral agreement that one Finan, an undertaker, should be employed on the occasion of the insured’s burial The justice below rendered judgment in favor of the plaintiff for the amount claimed, disregarding the counterclaim interposed by the defendant, the judgment resting apparently upon the provisions of § 502, .subdivision 3, of the Code of Civil Procedure, which are as follows: “ If the plaintiff is a trustee for another, or if the action is in the name of a plaintiff who has no actual interest in the contract upon which it is founded, a demand against the plaintiff shall not be allowed as a counterclaim; but so much of a demand existing against the person whom he represents or for whose benefit the action is brought, as will satisfy the plaintiff’s demand, must be allowed as a counterclaim, if it might have been so al"lowed in an action brought by a person beneficially interested.” It is open to serious question whether jhe provisions of § 502 of .the Code of Civil Procedure are available to a plaintiff in an action brought in the district court in the city of New York, a plain summary of the law being that the section is applicable to actions in every court within the state except the district courts alluded to. Section 502 is a part of article third of chapter sixth of the Code, and by subdivision 4 of § 3347 the whole chapter .sixth is made exclusively applicable to actions in the supreme court, the superior city courts, the city court of New York, and the county courts. By § 2945, §§ 501 and 502 are extended to actions in the justices’ courts, but neither the Code nor the Consolidation Act render § 502 applicable to the district courts in the city of New York. The sections of the Code which regulate the procedure in the last mentioned courts are 3207 to 3222, both inclusive, but nothing therein contained, either expressly or by pecessary implication, extends the operation of § 502 to actions in those courts. Section 2938, with reference to the justices’ courts only, provides that the answer may set forth new matter constituting a defense or counterclaim, and by § 1347 of the Consolidation Act ch. 410, L. 1882, § 2938 of the Code is applied to the district courts in the city of New York. The sections of the Consolidation Atit which affect the district courts are 1279 to 1440, both inclusive, neither of which extend the provisions of § 502 of the Code. Section 1347 of the Consolidation Act which renders cer-_ tain sections of the Code applicable to the district courts does not include § 2945 of the Code by which §§ 501 and 502 of the Code are made operative in actions in the justices’ courts. We do not decide the question since upon other grounds the judgment appealed from cannot be sustained. We merely point out for legislative action what is apparently an oversight. The district courts in the city of New York can exercise such jurisdiction only as has been specially conferred by statute. Schwartz v. Wechler, 49 St. Rep. 145; Ferree v. Elsworth, 47 St. Rep. 119; 19 N. Y. Supp. 659. That in consideration of the policy and the payment of the premiums by the insured the plaintiff may have rendered herself liable to the personal representatives of the insured, or to the undertaker, upon her promise to pay the funeral expenses of the insured does not render either the representatives or the undertaker beneficially interested in the policy issued by the defendant. If that were otherwise this action would not be maintainable since by express provisions of law, Code Civ. Pro. § 449, the action must be brought in the name of the real party in interest. 'The institution and prosecution of the action by the plaintiff as the beneficiary named in the policy is therefore in and of itself a refutation that another is the real party in interest. To hold that the counterclaim is not available-to the defendant because another than the plaintiff is the real party in interest respecting the demand sought to he enforced is to sáy that the plaintiff is not entitled to a recovery. The plaintiff’s contention respecting her claim and the defendant’s counterclaim are therefore plainly inconsistent.- She is either the party in interest and then the counter claim is available, or she is not the party in interest and then she cannot maintain the action. By bringing and prosecuting the action, and asserting her right to recover, she insists that she is the party in interest respecting the demand in suit, and so by her own admission the defendant’s counterclaim is available against her. A judgment in her favor determines that it was. It is apparent that the provisions of subdivision 3 of § 502 of the Code of Civil Procedure must be read with the provisions of § 449 and that the person against whom a personal indebtedness shall not be available to the defendant as a counterclaim are such as may be properly classed as “trustees of express trusts,” Hood v. Hayward, 124 N. Y. 1, 24; 35 St. Rep. 229 ; Sperb v. McCoun, 110 N. Y. 605, 610 ; 18 St. Rep. 616 ; Wetmore v. Porter, 92 N. Y. 76, 83; U. S. Trust Co. of N. Y. v. Stanton, 139 N. Y. 531, 534; 54 St. Rep. 816: Duncan v. The China Mut. Ins. Co., 129 N. Y. 237, 246 ; 41 St. Rep. 368. Mo express trust in favor of the legal representatives of the insured, or the undertaker, was created by the plaintiff’s oral agreement to pay the funeral expenses. Pomeroy’s Remedies and Remedial Rights, §§ 171-182; Considerant v. Brisbane, 22 N. Y. 389. As between the parties to the insurance contract the promise of the defendant to pay the amount named in the policy does not appear to have been made for the benefit of any person other than the plaintiff, the beneficiary designated in the policy. Defendant was no party to plaintiff’s alleged. oral agreement. Hence it cannot be successfully urged that the contract which plaintiff sought to enforce in this action was made with her, or in her name, or with the insured, or in the name of the insured, for the'benefit of either the personal representative of the insured, or the undertaker. Plainly then the case is not within the operation of the provision of § 449 of the Code of Civil Pro•cedure that “a person with whom or in whose name, a contract is made for the benefit of another,” shall be deemed to be the trustee of an express trust. The foregoing considerations lead to the conclusions that the justice erred in disallowing defendant’s counterclaim, and that the judgment should be reversed.

Judgment reversed and a new trial is granted, with costs to the appellant to abide the event.

Bookstayer, P. J., concurs.


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    August T. Hirt et al., Resp’ts, v. Passie M. Vincent, Impleaded, etc. App’lt.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    Bills ahd hotes—«Protest.
    In order to hold a prior indorser liable, the sequence of notices of the protest of the note must he complete.
    Appeal by Passie M. Vincent from a judgment of the general term of the city court affirming a judgment of the trial term. against said defendant and her husband, William E. D. Vincent, entered on a verdict directed by the court.

      Johnston & Johnston (Edward W. S. Johnston, of counsel), for app’lt; James P. Campbell, for resp’t.

       Reversing 58 St. Rep. 36.

   Bookstaver, P. J.

The defendant, William E. D. Vincent, husband of appellant, had been dealing with the plaintiffs for some years prior to the giving of the note in suit; when the note was given, plaintiffs had a mechanic’s lien for $826.99 on certain property in Brooklyn for goods theretofore sold defendant William E. D. Vincent, the whole amount of the plaintiff’s claim at that time being $953.58, of which $826.99 was secured by the lien. On the 29th December, 1891, plaintiffs cancelled their lien and took in payment of the entire claim, $400 in cash and the note in suit. The nofe was made by the defendant, William E. D. Vincent, to the order of the appellant, and by her endorsed to the plaintiff specifically charging her separate estate with payment and stating she “had received full value.” It was made payable at the West Side Bank and matured on the 2d May, 1892. It had' been by the plaintiffs deposited in the Eleventh Ward Bank for collection, which bank on the day of its maturity presented it at the West Side Bank for payment, and payment was refused. The plaintiffs however did not get this note from the Eleventh Ward Bank until the morning óf the 4th of May, 1892, when one of them between 11 and 12 o’clock in the forenoon called at the house of the appellant Passie M. Vincent and delivered a notice of protest to1 her. The only question we deem it necessary to consider upon this appeal is whether or not that notice was in due time. The evidence is clear that the notice of protest was personally handed to the appellant on the 4th of May in the morning, and that a notice was also mailed to her the same day. The counsel for the respondents on the argument contended that there was evidence showing that the Eleventh Ward Bank had sent notice to plaintiffs on the day prior to that time, but we have carefully looked through the testimony and find nothing showing that fact. It is true that the notice of protest is dated on the 3 rd-of May, but Mr. Hagdorn, one of the plaintiffs, testified that the day he mailed the notice to the defendant, he also had the interview with her and served the* other notice on her, and that he was “sure it was the 4th;” thus negativing the inference to be drawn from the date of the notice. If the Eleventh Ward Bank had on the morning of May 3rd notified plaintiffs of the protest of the note, and then the plaintiffs had given the notice they did, the sequence of notices would have been complete and the appellant would have been bound thereby; West River Bank v. Taylor, 34 N. Y. 128, 130 ; Mead v. Engs, 5 Cow. 303 ; Farmers' Bank v. Vail, 21 N. Y. 485; Smith v. Poillon, 23 Hun, 630-1; s. c. 87 N. Y. 597-8 ; Manchester v. Van Brunt, 50 St. Rep. 588. On a new trial it may be shown that the Eleventh Ward Bank having received the note back on the evening of the 2nd after business hours, duly notified the plaintiffs on the following day, in which event the sequence would be complete.. As there must be a new trial for the reasons above given, it is now unnecessary to discuss the other questions raised upon this appeal. The judgment must, therefore, be reversed and a new trial ordered with costs to the appellant to abide the event. Bischoff and Pryor, J. J., concur.


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    John Horan, App’lt, v. The Central Park, etc., Railroad Company, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    Appeal—Verdict.
    An order of the trial judge setting aside a verdict as against evidence will be reversed only for abuse of discretion to the prejudice of justice.
    Appeal from order for new trial. Action for personal injury from negligence of defendant.

      Purrington & Shannon (W. A. Purrington, of counsel), for app’lt; H A. Robinson, for resp’t.
   Pryor, J.

The cause is here, after a second trial; the first having resulted in a disagreement of the jury. On the trial under review the.verdict was for the plaintiff, but the court set i*fc aside pursuant to a motion on the minutes and this with briefs before him and after very deliberate reflection. Shall we reverse the order of the learned trial judge; an order embodying his considerate judgment, formed not only upon a critical review of the evidence, but under the impression of the demeanor of witnesses in delivering their testimony ? It is a' proverb with the profession that all witnesses look alike on paper. The thing that ascertains the value of testimony is mainly the manner of its delivery, the apparent candor and sincerity of the witness, or his manifest simulation and dissimulation. Of this decisive test of truth the trial court has the full advantage, while we are without it. Hence the rule, that on appeals from orders giving or refusing new trials upon a claim that the verdict is against the evidence and the justice of the case, the decision of the trial judge is of the weigh test influence. Aldridge v. Aldridge, 120 N. Y., 614, 617; 31 St. Rep. 948. Then again, since his determination is controlled by no precise and absolute regulation of law, but must, of necessity, rest largely irj .discretion dependent on all the circumstances of the trial, an appellate court will reverse him only upon a plain abuse of that discretion. Barrett v. Third Ave. R. R. Co., 45 N. Y. 628; Algeo v. Duncan, 39 N. Y., 313; Slater v. Drescher, 72 Hun, 425; 55 St. Rep. 172; Ferguson v. Gill, 74 Hun, 566; 57 St. Rep. 218; Shearman v. Henderson, 12 Hun, 170; Bannon v. McGrane, 13 Jones & S. 517, 520; Langlois v. Hayward, 36 St. Rep. 59; 13 N. Y. Supp. 200; Meddaugh v. Bigelow, 67 Barb. 106. Since, in a case of conflicting evidence, the trial judge may not set aside a verdict, “ unless it involves a conclusion that shocks the judgment, or betrays misapprehension, or imports the bias of some sinister interest or disturbing passion,” Nelson v. E. & A. R. R. Co., 58 St. Rep. 384, 386, we are to presume that the court proceeded upon these grounds in the order before us. The question then is whether the ease discloses an abuse of discretion to the prejudice of justice on the part of the trial judge in setting aside the verdict? The learned counsel for the appellant submits an argument of uncommon acuteness, but even his ingenuity fails in the effort to impart to the testimony of his client the indispensable element of credibility. The story he tells of the manner of his hurt “ baffles belief.’ Kummer v. C. & T. St. R. R. Co., 2 Misc. 298; 50 St. Rep. 332. His testimony now is vitiated and invalidated by a confession of false swearing on the former trial. Morgenthau v. Walker, 2 Misc. 245; 50 St. Rep. 337. With what semblance of reason may it be said that the court abused its discretion and perverted justice in setting aside a verdict founded on such evidence of such a witness? It is urged, however, that the plaintiff is corroborated in the essential fact„by the testimony of O’Connell. But, then, O’Connell admits that in identifying the car he told a lie for the benefit of his friend, thus evincing a degree of . interest in plaintiff’s favor inconsistent with the character of a trustworthy witness. In striking contrast with the weakness of. plaintiff’s case is the strength of the defense. By the testimony of disinterested witnesses, in addition to that of its own servants, the company showed the cause of plaintiff’s injury to be, not a fall from the car, but a collision with a passing truck. We cannot gainsay that conclusion of the learned trial judge that justice will be promoted by submitting the issues to another jury. If the plaintiff’s, case be honest he need have no apprehension of defeat.

Order affirmed, with costs and disbursements.

Bischoff, J., concurs.


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    Anna C. Kley, Resp’t, v. John W. Healy, App’lt.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    1. Fraud — Partnership.
    In an action for false representation by the defendant’s affirming himself to be a partner, a finding by the court that he either stated that he was a partner or that he was to become a partner, is not a finding of the fact that he represented himself to be a partner.
    2. Same — What is. ^
    To found an afction for a false representation, it must assert a fact as existing in the present tense.
    3. Appeal — Findings.
    While,.in the absence of any finding to support a judgment, the appellate court will infer a finding in conformity with the evidence, the pre- . sumption is not allowable in the presence of an express finding upon the question of fact.
    4. Pleading — Proof.
    A judgment must be secundum allegata, unless, by consent of the parties, the unpleaded issue was litigated on the trial.
    Appeal from judgment on trial by the court. The opinion states the case.

      Christopher Fine, for app’lt; Hector M. Hitchings, for resp’t.
   Pryor, J.

The action is in equity, to cancel a satisfaction of judgment, a release and a countermand of execution, on the ground that they were procured by the fraudulent misrepresentation of the defendant. The misrepresentation imputed to the defendant in the complaint is : “That he was interested as a co-partner in the mercantile house or firm of E. S. Higgins & Co.; and that if the recovery of' said judgment became known to his said co-partners they would dissolve their said co-partnership with him, eject him from said business and entail upon him financial ruin ; that his said interest in said co-partnership was a lucrative one, and would enable him soon to pay said judgment, which he then promised to do if she would only permit him to retain the said interest by releasing said judgment.” The representation charged, it will be observed, is that the defendant was then a member of the firm of E. S. Higgins & Co.; and that his interest in the co-partnership was an existing interest of present value. The representation found by the learned trial judge is: “That he was interested or was about to become interested as a co-partner in the mercantile house or firm of E. S. Higgins & Co.;' and that if the recovery of said judgment became known to his said co-partners, they would dissolve their co-partnership with him or would not allow him to become a partner and would eject him from said busi ness, both as a partner and as a clerk, and would entail upon him financial ruin; that his said interest in said co-partnership was, or was to be, a lucrative one, and would enable him to soon pay said judgment, and thereupon promised and agreed to pay the same if the plaintiff would permit him to retain said interest by releasing said judgment and executing said papers.” From this finding of fact, coupled, of course, with the requisite imputation of bad faith, and from this finding alone, the trial court deduced the legal conclusion ; that the release and satisfaction “were obtained by fraud and deceit, and that the same are void and should be vacated and set aside.” At first blush it may be thought that the finding ascribes to the defendant the alternative statement that he was, or was about to be, a partner; but upon an attentive reading the impression vanishes. Indeed were such the true construction of the finding, it would not be the representation alleged in the complaint. Moreover, it would be fatal to the judgment, because unsupported by a scintilla of evidence. The proof is that the defendant said either that he was a partner or that he was to become a partner ; some witnesses giving the one version and some * the other. It is obvious, then, that the learned trial judge does not find the fact as alleged in the. complaint, namely : that the defendant represented himself as an actual member of the firm. The finding is in the alternative; that he said either that he was a partner or that he was about to become a partner. The finding is that he made one or the other representation, but which is not ascertained. It was the one or the other; but whether the one or the other, the finding leaves doubtful and undetermined. Upon so shifting a basis of fact no legal conclusion can be established. “The rule is that the report must show the disposition made of the specific issues in the cause.” Dolan v. Merritt, 18 Hun, 27, 28. ‘When our review is upon the facts, it is essential that the findings be explicit and cover all the material facts in the case.” Rogers v. Beard, 20 How. 280, 284. “It must be distinctly found as a fact, if that fact is necessary to support the legal conclusion. Everything asserted to support the judgment must appear in the statement of facts. No fact can be implied from the conclusions of law.” Daly, C. J., in Tomlinson v. Mayor, 23 How. 452, 455. “Although the evidence undoubtedly must have satisfied the mind of the referee that the indebtedness did exist, yet he has wholly omitted to find any such fact. The facts are to be found by the referee, and not by the court." Jarvis v. Jarvis, 66 Barb. 331, 333. “The report must contain a sufficient statement of facts, to form a basis for the conclusions of law, and substantially show the disposition of the specific issues in the cause.” Van Slyke v. Hyatt, 46 N. Y. 259, 263. It is the law, undoubtedly, that on appeal, in support of the judgment, the record will be explored for evidence of a fact “where there has been no finding on the question of fact.” Oberlander v. Spiess, 45 N. Y. 175, 179. Here, however, is no inadvertent omission of a .finding; but, upon consideration of the evidence, the court, unable to determine the specific fact in issue, reports the existence of either that or another fact From the silence of the court a presumption of a ' finding might have been indulged; but since the court has spoken we are not at liberty to supplement its actual findings by the inference of another. Meyer v. Amidon, 45 N. Y. 169, 174; Comstock v. Ames, 3 Keyes, 357, 359. Waiving the defect in the finding of fact, and still it is impossible to uphold the judgment. If we assume the finding to be that the defendant represented himself as a present partner with an actual interest in the firm, it is against the clear and decisive weight of evidence. Before going, to the lawyer’s office, the plaintiff had already resolved and agreed to give the release and satisfaction. The misrepresentation, therefore, by which the alleged fraud was accomplished, occurred in the previous interviews between the plaintiff and defendant; and yet she does not pretend that he represented himself asa present but only as a prospective partner. If we consider his subsequent statements, they are still that he expects to be a partner, and is yet only a salesman, with means inadequate to the exactions of the proposed settlement. The plaintiff failed, therefore, to prove the fraud charged in the complaint, and it should have been dismissed pursuant to defendant’s motion. A party may not avail himself of a cause of action not pleaded, though proved, unless on the trial his adversary consents to litigate the new issue. Reed v. McConnell, 133 N. Y. 425 ; 45 St. Rep. 227; Douglas v. Ferris, 138 N. Y. 192; 52 St. Rep. 138; Hecla Powder Co. v. The Hudson O. and Iron Co., 7 Misc. 630; 58 St. Rep. 363; Bailey v. Rider, 10 N. Y. 303 ;1 Kelsey v. Western, 2 N. Y. 501; The Rome Ex. Bank v. Eames, 1 Keyes 588. The defendant requested no finding as to the representation of a future partnership; and evidence of that was pertinent to disprove the alleged representation of a present partnership. If the action be supposed to proceed upon the alternative finding, that the defendant fraudulently represented that he was to become a partner and to have a future Interest in the firm, the judgment is still untenable: first, because the proof is only that he did not in fact become a partner, and no evidence was adduced to show that he had not expectation of partnership; secondly, because one’s anticipation of a future partnership, no matter how confident may be the honest delusion of a a sanguine temperament, at all events, is the promissory statement of which the law refuses to predicate actionable fraud. “Actionable fraud consists either in misrepresentation or concealment as to the existence or non-existence of some fact or circumstance.” Farrington v. Bullard, 40 Barb. 512, 516. “Fraud arises from the assertion of the existence, in praesenti, of a fact.” Treacy v. Becker, 51 How. 69, 70. “It is difficult to see how an action can be based on the expression of hopes, expectations and beliefs.” Sawyer v. Prickett, 19 Wall. (U. S.) 146, 163. “To warrant an action for a deceitful representation, it must assert a fact as existing in the present tense.” Gallager v. Brunell, 6 Cow. 347. “A mere promise of something in the future, cannot be regarded as a fraudulent representation of an existing fact.” Lexow v. Julian, 21 Hun, 577. The finding involves a predicament of contradictory facts. If the defendant was only to become a partner in the future, it could not be that he was already a partner; and if he was already a partner, it could not be that he was yet to become a partner. But, between inconsistent findings the appellant is entitled to the benefit of the fact most favorable to him, in aid of his exceptions to the conclusions of law. Bonnell v. Griswold, 89 N. Y. 122; Kelly v. Leggett, 122 N. Y. 633; 33 St. Rep. 264; Schwinger v. Raymond, 83 N. Y. 192. Conceding then, to defendant, that his representation was of an expected partnership and a future interest in the firm, it is an insufficient support for the judgment; because not shown to be untrue, because not constituting legal fraud, and because not the fraud charged in the complaint. The points discussed are duly presented in the record; but, indeed, to challenge the correctness of the judgment at general term, no exception is necessary. Roberts v. Tobias, 120 N. Y. 1; 30 St. Rep. 189 ; Schwinger v. Raymond, 105 N. Y. 649 ; 7 St. Rep. 544; Mandeville v. Marvin, 30 Hun, 282. As the judgment must be reversed, the appeal from the order requires no consideration.

Judgment reversed and new trial directed, costs to abide the ‘event.

Daly, C. J., and Bookstaver, J., concur.


author: Pryob, J.

text:
    Jane McKenzie et al., Resp'ts, v. Loftus D. Hatton, Impleaded, etc., App’lt.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    Pleadings—Demurrer—Misjoinder.
    Demurrer for misjoinder of causes of action lies if each cause of actioa does not affect all the parties.

      Appeal from interlocutory judgment overruling demurrer to the complaint for insufficiency in substance and misjoinder of . causes of action. The complaint, so far as material, is as follows:
    “Sixth.—Also, upon information and belief, that the plaintiffs allege that the said defendant, Goldenberg, and the defendants, Michael Larkin and James J. Larkin, copartners, doing business under the firm name and style of M. Larkin & Son, as aforesaid, the agents, servants, contractors or employes of the said defendant, Simon Goldenberg, and their agents, servants, contractors and employees, wrongfully, negligently and unlawfully, and although licensed to enter upon the aforesaid building or premises of these plaintiffs, was duly tendered or given by these plaintiffs on their, part to the said defendants, Goldenberg and Larkin, said defendants-, against the laws of this commonwealth, to wit, in violation of § 474 of chapter 410 of the Laws of 1882 of the state of New York, excavated the land adjacent to the plaintiffs’ said land, and took away the soil therefrom to the depth of twenty-four feet or thereabouts, without leaving proper and safé support for the said land and the building belonging to the plaintiffs, and wrongfully, negligently and unlawfully entered upon the building or premises of these plaintiffs and drove certain needles into the wall of said plaintiffs’ building without the permission, knowledge or consent of the said plaintiffs, and the defendants having wrongfully, negligently and unlawfully committed the acts above named failed"to supply temporary and safe support to the plaintiffs’ land and building as aforesaid, and all in violation of the laws of this commonwealth, to wit: § 474 of chapter 41Q of the Laws of 1882. Seventh.—The defendant Loftus X>. Hatton is and at all the times hereinafter mentioned was in occupation at the said plaintiffs’ lot and building aforesaid as a tenant of the said plaintiffs under a lease from said plaintiffs beáring date April 7, 1892, for the term of three years from May 1st, 1892,. and as such tenant it was the duty of the said' Loftus D. Hatton on his part to give the said defendant Simon Goldenberg and the defendants Michael Larkin and James J. Larkin, copartners as aforesaid, and the agents, servants and employees of the said defendant Goldenberg and the defendants Michael Larkin and James J. Larkin, or either or both of them, full and free permission or license to enter upon the said premises, Ho. 35 West 4th street, belonging to these plaintiffs and in possession of the said defendant, Loftus D. Hatton, as tenant of the said plaintiffs as aforesaid, upon due application being made to him for permission so to do, in order that the said defendants, Goldenberg and Michael Larkin and James J. Larkin, copartners as aforesaid, arid either or both of them, might properly, safely and securely shore up said wall of the said building, 35 West Fourth street, when the said defendants or either or both of them excavated the land adjacent to the said plaintiffs’ land and took away the soil thereof as aforesajd ; and that the said defendant Hatton, wrongfully, negligently and unlawfully refused such permission or license as aforesaid to the said defendant, Simon Goldenberg, and the defendants, Michael Larkin and James J. Larkin, copartnets as aforesaid, or either or both of them, and to their agents, servants and employees, or the agents, servants and employees of either or both of them, so to enter upon the said premises, No. 36 West Fourth street, and properly shore up and protect the said plaintiffs’ wall and building thereon, and otherwise interfered with, hindered and obstructed the said defendant, Simon Golden-berg, a^-d the defendants, Michael Larkin and James J. Larkin, coparte 3rs as aforesaid, or either or both of them, and their agents, servants and employees, and the agents, servants and employees, or both of them, in their work of shoring up and protecting the „ plaintiffs’ wall and building thereon of the premises, No. 35 West Fourth street, in the city of New York, as aforesaid, and to a certain extent preventing said defendants, Simon Goldenberg and Michael Larkin and James J. Larkin, copartners as aforesaid, from properly shoring up the said wall, and thereby contributed to the injuries sustained, herein set forth.”

      Foley & Powell, for app’lt; D. J. Newlnnd and Johnston S Johnston (Edward W. S, Johnston, of counsel), for resp’ts.
   Pryob, J.

By the terms of the Code, § 484, it is indispensible to the union of several causes of action in the same complaint g first, that they be of a certain class; secondly, that they be consistent with each other; thirdly, that they affect all the parties; and fourthly, that they do not require different places of trial. Consisting only of a single count, still the complaint contains the elements of four different causes of action; two against Golden-berg and the Larkins, and two against Hatton. The causes of action against Goldenberg and the Larkins are: first, that having a license to enter upon plaintiffs’ premises, these defendants neglected duly to shore-up and protect them, and secondly, that, having no license, they wrongfully and unlawfully entered upon the premises. The causes of action against Hatton are: first, that he wrongfully refused a license to the other defendants, and secondly, that he prevented the other defendants from shoring-up and protecting the premises. Conceding, for argument, that these four causes of action comply with the other requirements of the Code in order to their union in a single complaint, it is manifest that each does not affect all the defendants. For instance: the cause of action against Goldenberg and the Larkins for an unlawful entry upon the premises, was not the legal effect of Hatton's refusal of a license, but their own voluntary and independent tort. Hat-ton’s refusal of a license, so far from an invitation was a prohibition of an entry. For this trespass, therefore, Hatton is plainly not responsible. So, Hatton’s refusal of a license was his own individual act, with which it is not suggested in the complaint that the other defendants had any connection or privity; the contrary, rather, hence, the other defendants are plainly irresponsible for Hatton’s wrong in refusing the license. Again, Hatton’s hindrance of the other defendants in protecting the premises, was, by the very terms of the proposition, against their will; was a wrong in which they did not concur and to which they did hot assent; was a wrong, therefore, for which obviously they are not answerable. The two substantive wrongs upon which the action proceeds are: the refusal of Hatton to give the license, and the entry of the other defendants without the license. But Hatton, as already seen, is not responsible for the wrongful entry of the other defendants, nor the other defendants for the wrongful refusal of Hatton. Neither of the causes of action affects all the defendants, and, hence, they are improperly united in the complaint.',Nichols v. Drew, 94 N. Y. 22; Chipman v. Palmer, 77 N. Y. 51; Jackson v. Brookins, 5 Hun, 580; Kelly v. Newman, 62 How. 156; Gardner v.' Ogden, 22 N. Y. 827, 840; Malone v. Slilwell, 15 Abb. •421; Wells v. Jeioeit, 11 How. 242; Gray v. Tobias, 17 Wend. 562. We concur with the learned trial judge in the conclusion that the complaint shows a cause of action against defendant Hat-ton ; but, for the misjoinder, the demurrer should have beep sustained.

Judgment reversed and demurrer sustained with costs.- Leave to plaintiff to amend or sever, without costs.

Daly, 0. J., and Bischoff, J., concur.


text:
    John Morris, App’lt, v. William H. Barrisford, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    •1. Nuisance—Insecure structure.
    The negligently maintaining in proximity to a street, any structure in so insecure a condition as to he liable to fall and injure pedestrians on the sidewalk, is a public nuisance, for which an individual sustaining special damage may have his action.
    2. Same—License.
    A municipal license of the structure is no license for it in a decayed and dangerous condition.
    Appeal from judgment on dismissal of the complaint at the conclusion of plaintiff’s case. Action for personal injury from the fall of an awning attached to defendant’s premises and projecting over the sidewalk, along which plaintiff ’ was passing. The court compelled the plaintiff to elect between a cause of action for negligence and a cause of action for nuisance.

      Constant & Coghill (L. A. Gould, of counsel), for app’lt; Knevalls & Perry (James W. Perry, of counsel), for resp’t.
   Pryor, J.

It is impossible- to construe the complaint otherwise than as asserting a right of recovery for injury from a nuisance. The imputation of negligence in the maintenance of the awning, is ineffectual to alter the nature of the action ; for negli-, gence may be an indispensable element in the constitution of the nuisance. People v. Sands, 1 Johns. 78: Simmons v. Everson, 124 N. Y. 319; 36 St. Rep. 265; Campbell v. U. S. F. Co., 73 Hun, 576 ; 56 St. Rep. 265. There was, therefore, no alternative of claims between which the,plaintiff was compellable to elect; but, as he chose to stand on the ground of nuisance, the cause of action propounded by the complaint, the ruling of the learned trial judge was of no prejudice to him.

According to the plaintiff the benefit of every favorable inference from the evidence, McNally v. Phoenix Ins. Co., 137 N. Y. 389; 50 St. Rep. 680, and his right of recovery is clear and incontestable. The awning was maintained by the defendant; was suspended over a public highway; was in an insecure condition and so a menace to pedestrians on the sidewalk; it fell from its own infirmity, and inflicted the wound on the plaintiff. These facts the jury might have collected from the evidence; and in combination they constitute an unimpeachable cause of action for injury from a nuisance. Vincett v. Cook, 4 Hun, 318; Simmons v. Everson, 124 N. Y. 319 ; 36 St. Rep. 265; Bohan v. Port Jervis G. L. Co., 122 N. Y. 18, 26; 33 St. Rep. 246 ; Walsh v. Mead, 8 Hun, 387; McConnell v. Bostelmann, 72 Hun, 238 ; 55 St. Rep. 439 ; Salisbury v. Herschenroeder, 106 Mass. 458; Ahern v. Steele, 115 N. Y. 203, 209; 26 St Rep. 295 ; Irvine v. Wood, 51 N. Y. 224, 228. But, argues the appellant, lie had -a license frem the city to maintain the awning, and, hence, it was not a nuisance. The awning simply, no; but its dilapidated and unsafe condition was the nuisance; and for that the defendant neither had nor could have a municipal license. Irvine v. Wood, 51 N. Y. 224, 228. Again, the appellant contends that the city only is responsible for the condition of its streets, City of Rochester v. Campbell, 123 N. Y. 405; 34 St. Rep. 77; but, the awning was upon defendant’s premises, although the peril to the public was from its projecting over the highway. McConnell v. Bostelmann, supra. Still further, appellant insists that notice of the nuisance should have been brought home to him; but, if that were necessary, the evidence was ample to justify the conclusion that he had information of the decay of the awning. Hay, more; that he himself maintained it in its dangerous condition, is an obvious inference from the first paragraph of his answer, in connection with the undenied allegation of the complaint. We see no escape from a reversal of the judgment.

Judgment reversed and a new trial ordered; costs to abide the event

Bookstayer, P. J. and Bischoff, J., concur.


text:
    Frederick R. Myers, App’lt, v. Moses S. Rosenback, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)
    Pleadings—Amendment—District court.
    Hatter of supplemental pleading may be incorporated in the answer by amendment in the district court.
    Appeal from order allowing matter of supplemental pleading to be incorporated in the answer by amendment

      Hamilton R. Squier, for app’lt; Horwitz & Hershfield (Otto Horwitz, of counsel,) for resp’t.

      Affirming, 58 St. Rep. 513.

   Pryor, J.

The distinction between an amended and a supplemental answer, is only in the time when the matter of the defense occurred or came to the knowledge of the pleader. But, time does not affect the substance of the defense. If good in an amended it is good in a supplemental answer; and if good in a supplemental it is good in an amended answer. To incorporate in an answer supplemental matter by way of amendment, violates only a technical rule of pleading, and is without effect upon the substantial rights of the parties. If is the distribution of substantial justice, however, irrespective' of formal rules of- procedure, that is the function of the district courts in disposing of the litigation before them. -Were they to be fettered by all the technical and redondito rules of practice with which judges and counsellors in courts of records are presumed to be conversant, they would surely miscarry in the attainment of that “cheap and speedy justice” which is the end of their institution. We are content to affirm the order on the opinion at special term.

Order affirmed, with costs and-disbursements.

Bookstayer, P. J., and Bischoff, J., concur.


author: Bookstayer, P. J.

text:
    Patterson Gas Governor Company, Resp’t, v. Lichtenstein Bros. Company, App’lt.

      (New York, Common Pleas, General Term,

      Filed June 4, 1894.)

    1. Appeal—Conflicting evidence.
    Common pleas will not, in case of conflicting evidence, reverse the judgment of a district court, unless it is clear that injustice has been done.
    3. Evidence—Admissions—President of corporation.
    The declarations of the president of a corpóration are admissible in evidence only for the purposes of contradiction.
    3. Same—Responsive.
    Evidence on direct examination, though not directly responsive to the question put, is not objectionable so long as it is pertinent to the issues in the case.
    Appeal from a judgment in the district court in the city of New York for the eighth judicial district.

      J. 0. Quggenheimer, for app’lt; P. O. Taiman, for resp't.
   Bookstayer, P. J.

This action is brought to recover the purchase price of a gas governor furnished by plaintiff to defendant Defendant’s promise'to pay was'made upon the express condition that the gas governor would demonstrate after thirty days’, trial a saving of from 40 to 50 per cent, in the consumption of gas. A contract similar in all respects to the one under consideration on this appeal except as to the length of time for trial allowed, was before us in Patterson Gas Governor Co. v. Glenby, 4 Misc. Rep. 532; 54 St. Rep. 119, and there we held the burden of proving the performance of the condition rested upon the plaintiff. And on the trial of this action, the plaintiff seems to have been governed by that decision, and offered considerable evidence tending to sustain that burden. It is true that it was contradicted by evidence on behalf of the defendant. But this conflicting evidence as is manifest from the opinion delivered by the justice who tried the case was weighed by him in his usual careful manner, and he determined the controversy in favor of the plaintiff. Where the evidence is conflicting, we will not reverse the judgment of a district court, unless it is clear injustice has been done, Weiss v. Strauss, 39 St. Rep. 78; Schwartz v. Weckler, 2 Misc. Rep. 67; 49 St. Rep. 145; Lynes v. Hickey, 54 St. Rep. 120. We may add that a careful reading of the testimony leads us to think so far from injustice having been done in this case, that the justice arrived at a correct conclusion on all the testimony, and that the defendant’s refusal to pay for, or longer use the gas governor was because it found other companies would furnish it with the same kind of an attachment or govprnor free of charge. It only remains to consider the exceptions taken to the introduction or exclusion of evidence, Mr. Lindheim, the president of the defendant, was examined as a witness on its behalf, and during the progress of the examination his business card was shown him, on which was written “M. A. Lewin, c\0 Julius Stein & Go., 515 Broadway. The hearer represents the Patterson Gas Governor Co., the party I spoke of. If you try the governor I am sure you will effect a large saving in your gas bills. E. L.; ” and he was asked whether it was in his handwriting, to which he answered that it was. It was then offered in evidence and defendant’s counsel excepted to its admission. Appellant now contends that this was error, and that the president had no power to bind his company by any acts of his of this kind, especially as it was three months after the governor had been put in. And this would undoubtedly be true had it been offered in chief or to prove an admission. But it was evidently not offered for that purpose but to contradict .the witness upon a material point, and tended to impair the force of his testimony. Mr. Patterson, the general superintendent of the plaintiff, was a witness on its behalf, and in his direct examainination when testifying as to certain gas bills, was asked whether or not these hills were for the time the governor was on, and he answered by stating the time it was on and the amount of gas then consumed and also when it was not on, and the quantity of gas consumed during that time. This latter part the defendant objected to and moved to strike out that portion of the answer, which was denied. We think there was no error in this refusal, as although is may not have been directly responsive to the question put, it did not lie in the mouth of the defendant to object to it on that occasion so long as it was pertinent to the issues in the case, and we think it was. The other objections and exceptions taken during the progress of the trial were based upon similar grounds and we think are equally untenable. . -

The judgment should therefore be affirmed, with oats.

Bischoff, J., concurs.


author: Bookstaver, J.

text:
    The People ex rel. William P. Baldwin, App’lt, v. Caroline Miller, otherwise known as Mattie Rodman and Mrs. Brink, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 4, 1894.)

    1. Referee—Power—Contempt.
    A referee, appointed under § 1015 of the Code, is vested by § 2272 with power to punish a witness for contempt.
    2. Same.
    An affidavit is not necessary, where the offense was committed in the immediate view and presence of the referee.
    3. Same.
    After the issue of a warrant of attachment, the court cannot permit the accused to purge himself without making reparation as provided by sections 2281 and 2284 of the Code.
    Appeal from an order of this court at special term, in contempt proceedings.

      Frank Moss, for app’lt; F. F. James (J. G. J. Langlein, of counsel), for resp’t.
   Bookstaver, J.

The defendant refused to answer certain questions after the referee, before whom she was being examined, had pronounced them proper and had warned her that her refusal was contempt of court. In this report of the circumstances the referee says, “on fourteen distinct occasions, the witness contumaciously, with marked contempt and defiance, and against the warning of the referee, refused to answer proper and material questions.” That this language is none too strong is easily seen from one of the defendant’s remarks (characteristic of the spirit she manifested throughout the hearing so far as reported to us) in response to a proper question “Well I think I will go home.” The referee subsequently issued a warrant of attachment directing the sheriff to arrest the accused and bring her before the court at a time specified to answer for- the alleged offense. Upon the return day the court directed the defendant to appear before the referee and answer the questions and continued the proceedings to a subsequent date. Complainant’s counsel opposed any final disposition of the contempt proceedings by such direction and it was stipulated that he waived no right by appearing again before the referee and asking the questions. The defendant then gave replies to all but three of the questions, which she refused to answer as tending to incriminate her. Thereafter the court by a final order acquitted her of the charge of contempt upon the ground that she had purged herself therefrom by her subsequent responses. In his argument her counsel contends that the referee, being appointed under § 1015 of the Code of Civil Procedure to report testimony and his opinion thereon in an incidental issue, was without power to punish a witness for contempt which is given by § 1018 only to referees appointed thereunder, but it is unnecessary to decide the question upon this ground because we think a referee in a case like the present is clearly vested with such power by § 2272 as follows : “An order to show cause may be made or a warrant may be issued, as prescribed in section two thousand two hundred and sixty-nine of this act, by a referee appointed by the court, where the offence is committed upon the trial of an issue referred to him, or consists of a witness’s non-attendance, or refusal to be sworn or to testify, before him. The order or warrant may, in the discretion of the referee, be made returnable before him, ox-before the court. Where it is made returnable before the referee, he has all the power and authority of the court, with respect to the motion or special proceeding, instituted thereby.”

Counsel for the defendant also argues that the foundation for the proceeding must, under § 2269, be an affidavit; but this obviously cannot be required where the offence was committed in the immediate view and presence of the court or referee as was done here. Matter of Hackley, 24 N. Y. 74. In fact the referee might have proceeded summarily under § 2267 to punish the offence. He certainly then had the lesser power to issue the warrant of attachment returnable before the court. The complainant’s counsel takes the ground, and correctly we think, that the court could not, as the matter stood, permit the accused to purge herself without making reparation as provided by §§ 2281 and 2284. Section 2280 declares that “ when the accused is produced by virtue of a warrant etc. * * the court or judge must determine whether the accused has committed tile offence charged ” and § 2281 “ If it is determined that the accused has committed the offence charged, and that it was calculated to, or actually did, defeat, impair,'impede or prejudice the rights or remedies of a party x‘ * the court, judge or referee must malee a final order accordingly and directing that he he punished by fine or imprisonment or both as the nature of the case requires. A warrant o£ commitment must issue accordingly.” Section 2284 provides for the amount of the fine. As we understand these sections, after the matter lias proceeded to a warrant of arrest, the method of procedure is fixed and mandatory; no locus poenitentiae remains to the offender nor any power to the court, judge or referee, of allowing the guilty one to purge himself of the contempt without making recompense to the injured party; and this is proper because, as appears from the language of § 2281 referring to “ rights and remedies of a party ” it is then not alone the dignity of the court which is to he considered (an offence against which the court might at any time forgive in its discretion) but also a substantial right of the aggrieved party, as in this case the fees to the sheriff and additional fees of the referee and stenographers and counsel, not to mentioned the delay and consequent loss owing to the peculiar features of the case, all of which have been incurred by the complainant (and some have been disbursed) through the fault of the defendant. The order must therefore be reversed with costs to the appellant and the matter sent back to the special term to impose such fine as the case may warrant. Daly, 0. J= and Bischoff, J., concur.