author: Parker, J.

text:
    Wilhelmine Sterger, App’lt, v. J. Wyckoff Van Siclen, Resp’t.

      (Court of Appeals, Second Division,

      Filed May 3, 1892.)

    1. Landlord and tenant—When landlord not liable for defects on PREMISES.
    Plaintiff occupied a house next to that of defendant. She came over to bring her children home, and as she was walking down the back steps, which were out of repair, holding one of them by the hand, the step broke and she was injured. Held, that plaintiff was a mere licensee, and that defendant, the landlord, was not liable for her injuries.
    2. Same.
    The fact that a landlord leases premises with a condition that he may re-enter for the purpose of making repairs, does not enlarge his responsibility as to third persons, or burden him with the duty as to them of observing any greater degree of care than would he required were he in possession.
    3. Same—Nuisance.
    Decayed steps in the rear of a house leading from the ground to a stoop do not constitute a nuisance as to a person occupying an adjoining house.
    Appeal from a judgment of the general term, second department, affirming a judgment entered upon a dismissal of the complaint at the Kings circuit.
    By this action the plaintiff seeks to recover damages for injuries sustained under the following circumstances:
    On the afternoon of June 20, 1886, while descending the steps leading from the ground to the rear stoop of premises known as No. 68 Schenck avenue, Brooklyn, a step broke, causing her to fall and resulting in injury. The premises were owned by the defendant, but occupied by one Leopold, a tenant, who entered into possession about the 1st of March, 1884. The plaintiff occupied the house next adjoining and between four and five feet from the one in which Leopold resided. The premises were separated in the rear by a fence through which an opening had been made by knocking off some of the boards. It appeared that the defendant knew of the condition of the steps and agreed to repair them, and he offered evidence tending to show that he made an agreement with the tenant by which he was to make the repairs for a fixed sum, which was deducted from the rent. This testimony was, to some extent, controverted, and plaintiff’s counsel having asked to go to the jury before the court dismissed the complaint, the refusal of such request is assigned for error on this review. But appellant’s contention cannot avail if, adopting the view of the evidence most favorable to her, a dismissal of the complaint was required.

      James D. Bell, for app’lt; A. Simis, Jr., for resp’t.

         Affirming 28 St. Rep., 627.

   Parker, J.

We are of the opinion that the evidence does not. permit a recovery.

No contractual relation exists between the plaintiff and defendant. The covenant of the landlord to repair does not inure to the-benefit of a stranger sustaining injury because of its breach. Odell v. Solomon, 99 N. Y., 635.

But when the occasion of the injury constitutes a nuisance as-to the party complaining, then a landlord may be chargeable in damages on the ground that he maintains a nuisance where the contract of. letting _ contains a covenant authorizing him to reenter for. the purpose of making repairs. Ahern v. Steele, 115 N. Y., 203; 26 St. Rep., 295.

We are thus brought to the question whether the decayed steps, in the rear of defendant’s premises leading from the ground to a stoop constituted a nuisance as to the plaintiff, who occupied an adjoining house. If so, the defendant by reason of his covenant. to repair may be responsible for the injury occasioned to plaintiff." while walking down them.

This inquiry admits of but one answer and does not seem to be-worthy of the citation of authority, but it may not be out of place to refer to the cases cited by the appellant.

It may be observed in passing that the owner may ordinarily exercise such dominion over and make such use of his real estate as he chooses, provided the rights of others are not thereby violated.

No right of the plaintiff was violated. The enjoyment of the-premises occupied by her was not interfered with. Had she remained on them the injury would not have occurred. But she chose to go on private property and up or down back steps,, over which she had no authority and as to which she had acquired no such interest by contract or otherwise as would have entitled her to demand as a right that the so-called nuisance be abated. As to her it was not a nuisance because it did not invade either her property or personal rights. Murphy v. City of Brooklyn, 98 N. Y., 642.

.Appellant cites Timlin v. Standard Oil Co., 126 N. Y., 514; 37 St. Bep., 906, where it is held that if an owner lease premises-without abating an existing nuisance, he is liable to respond in damages for an injury resulting therefrom. But that case has no-application here. The nuisance complained of was dangerous to the public and the adjoining owner. The wall of a building was so out of repair that it fell over upon the tracks of a railroad company, killing plaintiff’s intestate while engaged in repairing-the track.

In Beck v. Carter, 68 N. Y., 283, the owner made an excavation-on his own land, but so near to the highway as to render travel thereon dangerous, and failed to guard it, and the instruction off the trial court to the jury that the excavation was a nuisance if made in tlie highway or so near it that a person exercising ordinary care was liable to fall into it, was sustained. The court, holding that the circumstances of that case imposed a duty on the defendant to protect the excavation.

It appeared that the excavation had been made in a place long, used by the public, and the character of the user was thus described by the court: “ It was not the case of a bare permission by the owner to cross his land adjoining a public street. The land had by use long continued been made for the time being a public place and part of the highway.”

While the court held that the situation presented by the evidence supported the judgment, it did not fail to emphasize the general rule that the owner of property has the right to put his-property to such use as he chooses, “.and in the absence of special circumstances, if a person traveling on a highway deviates therefrom and falls into a pit or excavation on the adjacent land, the-owner is not responsible for the resulting injury.”

There are cases where the use to which an owner of property puts it is of such a public character that he is bound to observe-reasonable care in keeping it in such a condition as to save harmless those who are invited to come on to it for the benefit and profit of the owner. Oases of this kind are considered by this-court in Clancy v. Byrne, 56 N. Y., 129. A drayman, in the ordinary course of his business, drove a horse upon Pier Ho. 34, Hortli River, and a rotten plank giving way, the horse fell through and was killed.

In the opinion of Folger, J., it is said that the occupant is-liable for an injury to the property of a person lawfully upon it therewith. “ This is not put upon the ground that the south half of the pier was a public place or highway. It was private property to a certain degree, though held as such for public objects. * * * By the use to which it was put by the occupant, from, which a profit to him was- directly or indirectly derived, and which persons of the calling of plaintiff aided, there was a license- and an invitation given to the plaintiff to come and go on this-pier in the following of his employment,” * * * and thus- “ was imposed on him the duty of taking care, so long as it was-thus kept open, that those who had a lawful right to go there could do so without danger to their property.”

Swords v. Edgar, 59 N. Y., 28, was a case of injury by a defective pier, and the court said “ though the pier be private property, and though it be granted that the owner or occupant thereof might at any time close it, and refuse entrance upon it to any and all persons, yet so long as it was kept open to that portion of the public of which the intestate was one, for the profit of defendant’s lessees, there was upon such lessees primarily the duty of 'talcing care, so long as it was thus kept open, that those who had lawful right to go there could do so without incurring danger to-their persons.”

But a further consideration of cases is neither needful nor useful. Ho case has been found, nor do I think can be, which supports the contention that, as to this plaintiff, the decayed, back stairs of a private residence under the circumstances proven constituted a nuisance.

As there is no injury in a legal sense which can give a right of action unless it is occasioned by a violation of some duty owing to the injured, there remains for consideration but one other ground, on which it is claimed that defendant’s liability can be predicated.

It is urged that a recovery can be.supported because the defendant negligently permitted ■ the stairs to remain in an unsafe condition. The question is therefore presented, did the defendant’s duty require the exercise of any care to protect the plaintiff while on the premises ?

The fact that a landlord leases premises with a condition that he may re-enter for the purpose of making repairs, does not enlarge his responsibility as to third persons, or burden him with the duty as to them of observing any greater degree of care than would be required were he in possession.

As it may tend to avoid confusion, therefore, we will consider the question of negligence from the standpoint of actual occupation by the owner, this defendant

It will be well to get in mind first the situation of the premises and the circumstances surrounding and leading up to the injury. For such purpose we will take the testimony of the plaintiff.

At the time of the injury she occupied a house next to and between four and five feet from the house of defendant where the injury occurred. Between the houses was a fence, and in the rear of the houses an opening had been made by knocking some boards ■off. Her little girls were accustomed to go into the yard and play, and on the 20th of June, 1886, about half-past five in the afternoon plaintiff went over to bring the children .home. They were then in the house, and as she was walking down the back steps holding one of them by the hand, the fourth or fifth step from the bottom broke and her foot went through, causing her to fall to the ground, resulting in injury.

From these facts it appears that the plaintiff was not brought within the risk of these unsafe steps by the occupier's invitation on a matter of common interest, or in the exercise of a right. She was therefore a mere licensee.

Permission involves leave and license, but it gives no right. If I avail myself of permission to cross a man’s land, I do so by virtue of a license, not of a right. It is an abuse of language to call it a right; it is an excuse or license, so that a party cannot be treated as a trespasser.” Martin, B., in 7 H. & N., 745. The general rule is that a licensee must take the property as he finds it. Mr. Pollock, in his work on Torts, states the rule as follows: “ Persons who, by the mere gratuitous permission of owners or occupiers, take a short cut across a waste piece of land, or pass over .private bridges, or have the run of a building, cannot expect to find the land free from holes or ditches, dr the bridges to be in .safe repair, or the passages and stairs to be commodious and free from dangerous places.” The exceptions to which he alludes need mot be mentioned, for they are not in point here.

Mr. Pollock cites in support of the rule quoted English decisions mainly, but the same rule has been generally, if not universally, applied in the various jurisdictions m this country.

In Severy v. Nickerson, 120 Mass., 306, a laborer employed in loading ice on board a vessel from the wharf, after finishing his-work, went on board the vessel for the gratification of his curiosity,- and there fell down an open hatchway and broke his-leg. Devens, J., speaking for the court, said: “'The distinction which exists between the obligation which is due by the owners of premises to a mere licensee, who enters thereon without any enticement or inducement, and to one who enters upon lawful business by the invitation, either expressed or implied, of the proprietor, is well settled. The former enters at his own risk; the latter has a right to believe that, taking reasonable care himself, all reasonable care has been used by the owner to protect him in order that no injury may occur.”

In Larmore v. Crown Point Iron Company, 101 N. Y., 391; 1 St, Rep., 43, the plaintiff, an employee of defendant, quit work two days before the injury, on account of the supposed danger incident to the work at the pit where he was employed. At the-suggestion of the foreman of that pit he applied at another pit,.' and was engaged to commence work there on the following Monday, and while near a machine used in raising buckets of ore from the mines to the surface of the ground, a lever was thrown out of its socket, and flying around struck and broke his legs. It was held that he could not recover, the court saying: “ He was on the premises at most by the mere implied sufferance or license of the defendant, and not on its invitation, express or implied, nor was he there in any proper sense on the business of the company. * * * The fact that the plaintiff had, on going to pit No. 10, engaged to commence work on the following Monday, did not change his relation to the company or make him other than a mere licensee on the premises.”

That case is decisive of the one under consideration so far as-the question of negligence is concerned, for it is an authority for the assertion that plaintiff’s own testimony establishes conclusively that while she was on defendant’s premises she was at most a mere licensee. The judgment should be affirmed.

Judgment affirmed, with costs.

All concur, except Haight, J., not voting.


source: Caselaw Access Project

author: Peckham, J.

license: Public Domain

text:
    The People, Resp’ts, v. John H. Sweeney, App’lt.

      (Court of Appeals,

      Filed May 3, 1892.)

    1. Criminal law—Evidence—Good character..
    On a trial of an indictment for grand larceny in obtaining money under false pretenses, where the defense was mistaken identity, the judge, after the usual charge that defendant was presumed innocent until the contrary was proved, charged at request of defendant’s counsel that proof of good-character raised the question whether a man who has it is likely to commit the crime charged, and in a doubtful case where evidence hangs even, that character would turn it; that the jury must decide the case on the evidence and not upon speculation or the theory of counsel on either side. Thereupon the district attorney asked the judge to charge that if the crime charged in the indictment had been conclusively proven to the satisfaction of the jury beyond a reasonable doubt, that in that case any good character of the defense does not avail him, and the court so charged. Held, no error.
    .2. Same.
    Taken altogether the charge plainly meant that if upon the whole evidence, that of good character among the rest, the jury regard the crime conclusively proven to their satisfaction beyond a reasonable doubt, then the good character furnishes no defense and can be of no avail to defendant.
    Appeal from judgment of the supreme court, general term, ■fourth department, affirming judgment of conviction of the crime ■of grand larceny in the Jefferson county court of sessions and affirming an order of that court denying a motion on the minutes for a new trial.

      W F. Porter, for app’lt; F. H. PecJc, for resp’ts.

       Affirming 36 St. Rep., 75.

   Peckham, J.

The defendant was convicted of grand larceny in the first degree in obtaining by certain false pretenses the sum •of $4,040 from' the prosecutor. The pretenses by which the money was secured from the prosecutor were fully set forth in the indictment and they furnish cause for amazement that any grown man of intelligence sufficient to have acquired a sub■stantial amount of property should have been deceived by them. There is, however, no dispute upon that portion of the case, and no claim is made that the prosecutor did not in fact part with bis money upon the belief that the story told him was actually true.

The defense set up was that the prosecutor was mistaken as to the identity of the person who obtained his property and that the defendant was not the man and had nothing to do with it, but on the contrary it is claimed that he was at the time of the -occurrence over five hundred miles away, in the village of Clyde in the state of Ohio. This was testified to by the defendant and his wife, and certain witnesses who resided in Clyde were examined on his behalf on that point by commission and gave evidence which tended, as is claimed, to confirm his story. Certain witnesses from Clyde also gave evidence as to the good character of the defendant.

The chief and only important exception was taken to the •charge of the judge, made upon the request of the district attorney, as to the effect of this evidence of good character. The judge had made the usual charge that the defendant was presumed innocent until the contrary was proved, and in case of a reasonable doubt whether his guilt had been satisfactorily shown he was .■entitled to an acquittal. In response to requests from defendant’s •counsel the judge had then charged that proof of good character raises the question whether a man who has it is likely to commit the crime charged, and in a doubtful case where the evidence hangs even, character would turn it; that evidence that a man had a good character for morality and honesty will actually outweigh evidence which might otherwise appear conclusive; that the jury must decide the case on the evidence and not upon .speculation or the theory of counsel on either side. Thereupon the district attorney asked the judge to charge that if the crime •charged in the indictment had been conclusively proven to the satisfaction of the jury beyond a reasonable doubt, that in that case any good character of the defense does not avail him, and the court so charged. This charge did not remove from the consideration of the jury the evidence of good character upon the question of the guilt of the defendant. It did not mean that if from the evidence in the case other than that pertaining to good character the jury should conclude him guilty, then the evidence ujDon the subject of character was not to be considered and could be of no avail to defendant. If such a construction were possible ■or even plausible when considered alone, yet the language of the judge in response to the requests from the defendant’s counsel must be looked at and due weight given it. It had not been withdrawn and the effect of the language under discussion was not to withdraw the previous charge from the consideration of the jury. Taken altogether the charge plainly means that if upon the whole evidence, that of good character among the rest, the jury regard the crime conclusively proven to their satisfaction beyond .a reasonable doubt, then the good character furnishes no defense .and can be of no avail to defendant. The construction contended for by counsel for the defendant would neutralize and fully withdraw the charge which the judge had just made, that good ■character for morality and honesty would actually outweigh evidence which might otherwise appear conclusive.

This is not like the case of Remsen v. People, 43 N. Y., 6, for in that case the court charged that it was only in doubtful cases, where there was a well reasoned doubt logically arrived at on the part of the jury, arising out of all the evidence, that evidence of .good character steps in. This was held error; as it, in substance, took from the jury the consideration of the "evidence of good ■character when looking at the other evidence in the case upon the .subject of defendant’s guilt, and only allowed it to be considered when in truth by the existence of a well reasoned doubt the defendant was entitled to an acquittal without it. On a fair construction of the whole charge the law was properly laid down in .accordance with the principles announced in the Remsen case, ■and since that time steadily maintained in this case.

We have carefully considered the various other exceptions argued by counsel and upon his brief, and conclude that none is available.

The judgment must be affirmed.

All concur.


author: Earl, Ch. J.

text:
    The People, Resp’ts, v. Henry A. Cassidy, App’lt.

      (Court of Appeals,

      Filed May 3, 1892.)

    1. Arson—Evidence—Surroundings of house burned.
    Upon the trial of a defendant charged with arson in the first degree, in' setting fire to a house used as a lodging place for the employees of the Catholic Protectory, which house was in a block with four other buildings, the district attorney was permitted to show the location and occupancy of these other buildings. Meld, no error.
    2. Same—Admissions to polios officer—Code Crim. Pro., § 395.
    Voluntary admissions made to a police officer in response to question» may be received in evidence, unless they were made “under the influence of fear produced by threats,” and whether they were so made is a question, for the jury.
    3. Same.
    A letter written by defendant to his mother while under arrest, which contained statements tending to show his guilt, is admissible as evidence against him.
    Appeal from judgment of the supreme court, general term-,, second department, affirming judgment of the court of sessions of Westchester county, convicting defendant of arson m the first degree.

      Frederick W. Sherman, for app’lt; William P. Platt, for resp’ts.

         Affirming 39 St. Rep., 27.

   Earl, Ch. J.

The defendant was indicted for arson in setting fire to an inhabited building belonging to the New York Catholic Protectory. There was no dispute at the trial that the fire was of incendiary origin. The proof to show that the defendant was the author of the fire consisted mainly of his confessions. He denied his guilt, and gave evidence, mostly by his relatives, for the purpose of showing insanity and an alibi. The trial judge submitted all the evidence to the jury in a full and fair charge, to-which no • exception whatever was taken. The evidence was. abundant to authorize a verdict of guilty, and we have only to, consider the exceptions taken during the trial to rulings upon, questions of evidence. We have carefully examined these exceptions, and it is entirely clear that none of them were well taken.

The building set on fire was in a block with four other buildings, all connected together, but occupied by different families.. The district attorney was permitted to show the location and occupancy of these other buildings, and in this it is claimed error was committed. There was no possible harm in this evidence to-the defendant, and it was competent for the purpose of describing the theatre of the crime, and the conditions and circumstances which surrounded it.

The defendant's counsel objected to a map of the building set on fire and of the adjacent and surrounding premises, which was given in evidence on the part of the prosecution. The map was competent to bring before the jury the precise location of the building set on fire and its surroundings.

The confessions of the defendant were made while he was. under arrest, in the presence of several persons, to Inspector Byrnes, of the New York police force. The inspector and other persons present testified that the confessions were voluntarily made. The defendant testified that they were made “ under the-influence of fear produced by threats," and hence it was claimed on his behalf that they were not competent under § 395 of the-Code of Criminal Procedure.

The jurors were instructed to disregard the confessions if .thus obtained, and they must have found that they were not thus induced ; that they were voluntarily made and reliable, and hence they were properly in the case and were sufficient as the basis of the verdict.

The defendant while under arrest wrote a letter to his mother, which contained statements tending to show his guilt. We can see no possible ground for the exclusion of the letter as evidence against him.

There are other exceptions to the rulings of the trial judge, but they are manifestly groundless, and even less important than those we have specially noticed.

The judgment should be affirmed.

All concur.


author: O’Brien, J.

text:
    The People ex rel. The Edison Electric Illuminating Company, App’lt, v. Edward Wemple, Comptroller, Resp't.

      (Court of Appeals,

      Filed May 3, 1892.)

    -Corporations—Comptroller to credit amount of taxes assessed in excess—Laws 1889, chap. 463.
    The comptroller has no power under chap. 463, Laws 1889, to pay back to corporations taxes when he is of the opinion that they were illegally assessed. The corporation is merely given the benefit of having the sum paid in excess of what might have been lawfully demanded applied upon future taxes, with interest on such excess from the time of such payment.
    Motion to amend remittitur so as to direct comptroller to pay back excess of taxes illegally assessed upon relator, with interest.

      Eugene H. Lewis, for app’lt; S. W. Rosendale, att’y-gen’l, for xesp’t.

       See 42 St. Rep., 280.

   O’Brien, J.

The remittitur should be amended so as to allow interest on the sum paid by the relator from the time of such payment, but there is no authority for a judgment directing the money to be refunded. Chapter 463 of the Laws of 1889 gives to corporations a new and important remedy. It permits them to apply to the comptroller for a revision of any tax levied upon them under the law providing for the taxation of certain corporations. They are not limited as to time within which the application is to be made. Any corporation that ever paid a tax under the law may now apply for a revision and re-adjustment But the legislature did not confer power upon the comptroller or the courts to direct the refunding of any tax paid into the treasury to the corporation that paid it. There may be cases where it would be just and perhaps necessary to refund the money paid, but such cases are reserved for the action of the legislature itself. Taxes once paid into the treasury under this statute cannot be paid back without an appropriation. All the comptroller is authorized to do in an application for revision and re-adj ustment is to re-settle the account, and to charge or credit, as the case may require, the -difference, if any, resulting from such revision “ upon the current

accounts ” of the corporation filing the petition. The courts are authorized to review the action of the comptroller, and to correct, it when found erroneous upon the facts or the law. But upon such review the court can give no judgment that the comptroller could not have given when the application was before him. The party paying the tax and applying for a review perhaps many years after has no remedy except what the statute gives him. The legislature never intended to clothe the comptroller with power to' pay back to corporations taxes when he was of the opinion that they were illegally assessed.

It was supposed that justice would be done by permitting the comptroller to give the corporation credit upon its account. This leaves the money collected in the treasury, but gives the corporation the benefit of any sum paid in excess of what might have-been lawfully demanded by applying it upon future taxes. It. was assumed that the corporation would have such an account, and in this case it has. This corporation has an account with the-comptroller, because since 1889 it was liable to taxation. In a. case where there was no liability to taxation, and consequently could not be any account between the corporation and the comptroller, the legislature must carry out the decision of the court by making a proper appropriation of the money. The motion,, except as to the interest, must be denied.

All concur.


author: Maynard, J.

text:
    The Rochester Railway Co., App’lt, v. William H. Robinson, Resp’t.

      (Court of Appeals,

      Filed May 3, 1892.)

    Eminent domain—Condemnation peoceedings—Petition—Code Civ. Peo., § 3360, sued. 7.
    A petition upon an application by a railroad.to have commissioners appointed to appraise property to be taken by condemnation, which complies literally with subdivision 7 of § 3360 of the Code, without stating specific facts, is sufficient to confer jurisdiction upon the court to-proceed with the matter and enter final judgment.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment in favor of defendant.

      Theodore Bacon, for app’lt; John Desmond, for resp’t.

       Reversing 38 St. Rep., 1022.

   Maynard, J.

The plaintiff is a street surface railroad corporation and has authority, under the railroad law, to condemn real property for its corporate uses. The defendant is the owner of' premises upon one of the streets in the city of Rochester, along which the plaintiff proposes to construct and maintain its roadway. For such a purpose it is necessary to have an easement upon defendant’s property and, not being able to agree with him for its purchase, the plaintiff instituted this proceeding under the condemnation law by the presentation of a petition to the Monroe special term, August 25, 1890. The proceeding was dismissed and the application for the appointment of commissioners of appraisal denied, upon the sole ground that the petition was fatally defective-in not setting forth the facts showing that all the conditions precedent to be observed by the plaintiff before it can take property for .a public use against the will of the owner had been pei-formed. In this respect the averment in the petition is a literal compliance with the provisions of sub-division 7 of § 3360 of the Code.

It is objected to this form of pleading that it does not state facts, but only the legal conclusions of the pleader ; and that it is, therefore, insufficient to confer jurisdiction upon the court to proceed with the matter and enter final judgment of condemnation. We do not think the objection is tenable. It is a sufficient answer to .such a criticism, that the whole proceeding is regulated by statute ; and that upon this point the law has defined, with precision and exactness, the form and substance of the allegation required. The legislature does not seem to have left any room for doubt or construction upon the subject The section begins with a declaration’that the proceeding shall be initiated by the presentation of a, petition, which shall set forth certain specified facts enumerated in sub-divisions one to six inclusive, and wherever a general statement is regarded as insufficient, care has been taken to provide -that facts shall be stated in detail, as where the name or place of residence of an owner cannot, after diligent inquiry, be ascertained it may be so averred “with a specific statement of the extent of the inquiry which has been made.”

But when subdivision 7 is reached, a marked change in the phraseology and grammatical construction of the section occurs. Instead of requiring specific facts to be stated, it is provided that the petition shall' contain “a statement that it is the intention of the plaintiff, in good faith, to complete the work or improvement for which the property is to be condemned; and that all the preliminary steps required by law have been taken to entitle him to institute the proceeding.” This change is significant and was, ■evidently, intentional; and we are not at liberty to import into the paragraph provisions and requirements which the framers of the law have purposely omitted from it. While the plaintiff anight, if he should so elect, set forth the several acts done by him which constitute the preliminary steps referred to, yet he may adopt the language of the statute and in the concise form there prescribed tender an issue to the defendant upon this branch of his case. The latter cannot be prejudiced by such a practice. What the law requires the plaintiff to do before the commencement of the proceeding is as well known to the one party as the ■other. If the defendant has knowledge that any preliminary step required, has not been taken, he can, under § 3365, put the allegation in issue .by a specific denial or by including it in a general ■denial of all the averm’ents of the petition; or, if he has no knowledge or information sufficient to form a belief upon the subject; by a denial in that form, and thus compel the plaintiff to make proof of compliance with all the statutory requirements or fail in the proceeding. An allegation of this kind is not correctly described as a conclusion of law. It is the averment of a fact ; one, it is true, which is a deduction from other facts known to the pleader to have an existence. It is what is aptly described as a resultant fact or a conclusion of fact, and it is such facts and not evidentiary facts which should be alleged in a pleading. Badeau v. Niles, 9 Abb. N. C, 48.

A statement is not to be deemed any the less a statement of fact, because its ascertainment may depend upon some principles of law applicable to various other facts and circumstances, Prickhardt v. Robertson, 4 Civ. Pro., 112, and it has always been held to be good pleading under the Code to state facts according to their legal effect Brown v. Champlin, 66 N. Y., 214; Thayer v. Gile, 42 Hun, 268; 5 St. Rep., 103.

“ Pleadings are not now to be strictly construed against the pleader, and averments which sufficiently point out the nature of the pleader’s claim are sufficient if under them, upon a trial of the issue, lie would be entitled to give all the necessary evidence to-establish the clairri." Berney v. Drexel, 33 Hun, 34-37. An allegation that due proceedings had been taken to establish a mechanic’s lien, was held on demurrer to be good. McCorkle v. Herrmann, 22 St. Rep., 519. In providing that the plaintiff may allege in this general way the performance of the necessary statutory conditions precedent, the legislature has not introduced a novel rule of pleading; they have simply followed a declared policy upon this general subject, which first appeared in § 162 of the Code of 1848, and was re-enacted as § 533 of the present Code. It is there provided that in pleading the performance of a condition precedent in a contract, it is not necessary to state the facts constituting performance; but the party may state, generally, that he duly performed all the conditions on his part, and if the allegation is controverted he must on the trial establish performance. The legislature evidently failed to discover any good reason' why it would not be equally safe and proper to permit the performance of statutory conditions precedent to be pleaded in the same way. A like rule has been adopted with reference to pleading a judgment, or other determination of a court or officer of special jurisdiction. Code, § 532. It works no hardship to the defendant, but really affords him greater latitude of pleading, for if but a single step has been omitted, he can safely deny the general allegation and thus compel the plaintiff to make proof of performance of every essential condition.

These conclusions do not involve any relaxation of the rule of construction, which requires that statutes which seek to deprive the citizen of his property against his will shall be strictly construed. The law under consideration does not authorize the taking of the property of any one. It merely prescribes the method of judicial procedure in those cases where by virtue of the provisions of some other law the exercise of the right of eminent domain has been conferred for public purposes. It is to receive the same liberal construction as the other provisions of the Code,, which regulate the practice in actions and proceedings in courts of justice without regard to the magnitude or value of the property rights which may be involved. The plaintiff is not relieved of the necessity of making strict proof of its right to take, the defendant’s property, provided the allegations of the petition are controverted. If upon the trial it is unable to show that every preliminary step, which is of the substance of the proceeding, has not been taken, its effort to impose an additional burden upon the premises of the defendant will be defeated; but the question here is one of pleading and not of proofs.

The orders of the general and special terms must be reversed and the proceeding remitted to the supreme court for further proceedings upon the petition, without costs of the appeals in this court and the supreme court to either party as against the other.

All concur.


author: Bookstaver, J.

text:
    Julia Smith, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    Railroad—Elevated—Easements—Future injuries—Compensation.
    In ascertaining the sums which an elevated railway company must pay an owner of abutting property for his easements taken in order to avoid an injunction restraining the road’s operation, future injuries from the running of trains, such as smoke and gases from the engines, may be considered.
    Appeal by the defendants from a judgment of the special term of this court, entered upon the decision of a referee appointed pursuant to a stipulation made by the parties.

      Julien T. Davies and Joseph M Lord, for app’lts; Charles •Gibson Bennett, for resp’t.
   Bookstaver, J.

The judgment enjoins and restrains the defendants from maintaining and using their elevated railroad in front of plaintiff’s premises,' 356 Hinth avenue, in the city of Hew York, but provides that if the defendants shall pay or tender to the' plaintiff, within a time fixed in the judgment, the sum of $1,250, with interest, as and for payment of the value of the easements in Hinth avenue attached or appurtenant to the plaintiff’s premises taken, appropriated or interfered with by the maintenance and operation of defendants’ road, and accept a conveyance •of such easements in proper form executed by the plaintiff, no injunction shall issue. The judgment also awards to plaintiff the sum of $884.80 for past damages sustained from May 19, 1882, to March 9, 1891, the date of the trial of the action, with interest from the date of the trial.

It is contended that it was error to grant an injunction against the future running of trains, and to include damages for any injuries incidental thereto in fixing the sum to be paid as the value of the easements. This contention is not discussed on principle, but is based solely on the authority of Sperb v. El. Ry. Co., 41 St. Rep., 155, and American Bank Note Co. v. El. Ry. Co., 41 id., 531.

This court in Peyser v. Met. Ry. Co., 13 Daly, 122 (1885), said: All the evidence as to the darkening of plaintiff's windows by the passage of trains and the emission of smoke and steam was properly admitted. The elevated structure was built to permit the passage of these trains, and to attempt to distinguish between the obstruction of light caused by the structure exclusively, is not. to be justified on principle. The use of the street by the locomotive trains is not a public use, except in connection with the elevated structure,' and the two constitute in effect but one obstruction.

“ It was also proper to admit evidence of the smoko and stench emitted by the engines, which compelled plaintiff’s tenants to keep the windows closed. If the air from the street which the windows were intended to admit was not to be obtained except, accompanied by the smell and smoke, and the latter one unbearable, there was as much a deprivation of the air as if a palpable barrier had been erected outside the window.” The court in that, case also held there could be no recovery for noise or vibration. After a careful examination not only of the opinion of the court of appeals in the Bank Note case, supra, but also of the findings of the referee and counsel’s points, we think the latter case does not overrule any of the above stated propositions of this court, but confirms them. The 27th finding of the referee is as follows:. “ The interest and easement of the plaintiff in the street in front of plaintiff’s premises, and the damage to the fee value, as far as the maintenance of the present structure and the operation of the railroad as at present operated is concerned, as for all future damages to said plaintiff’s easements, is of the value of fifty thousand dollars, of which forty-nine thousand dollars are for impairment, of light, air and access, and one thousand dollars for damages from noise.” This finding was excepted to. The judgment also-provides for a release to the defendants of the right to use the street in front of its premises for the maintenance of the defendants’ present structure, and the operation of the defendants’ railroad as now operated by the defendants, and a release from plaintiff of all future damages to be incurred by plaintiff from the maintenance of the present structure and the operation of the present railroad in front of plaintiff’s premises.

Defendants also requested the referee to find in that case the-request contained in his 11th proposed conclusion of law in this case, verbatim et literatim, which was refused and defendants excepted, so the question under consideration was squarely raised in that case, and was argued by appellants in their brief at some-length, but the court of appeals affirmed the judgment in all respects except as to the award for noise, which was disallowed, but. by a divided court, three of the judges being in favor of allowing that item also. That case, as this, was in equity, and Finch, J., who delivered the prevailing opinion, after referring to Kane v. El. Co., 125 N. Y., 164; 34 St. Rep., 876, in which the court held that in an action at law for the wrong done abutting owners in which past damages only were sought, the elevated roads were liable for the noise of their trains upon the ground that they were trespassers, proceeds to show why this should not be allowed in an equity action, where compensation is to be given for the easements interfered with or taken. In the course of the opinion on this question he said: “In the Drucker case the full extent of the transformation bringing with it the liability for damages was sketched in these words: Smoke and gases, ashes and cinders affect and impair the easement of air; the structure itself and' the passage of cars lessen the easement of light; the drippings of. oil and water and probably the frequent columns interfere with convenience of access ; but there is no hint of any allowable recovery beyond what pro tanto constituted some element of the-taking. In the Lahr case Eager, Ch. J., was equally guarded, saying that the incidental injuries could be recovered provided the evidence established the fact that they were destructive of the easements of light, air and access; and these careful expressions were used, although neither case involved a question of fee-damage.”

Altmayer v. El. Ry. Co., invoved the same question and was: affirmed without an opinion. In Bohm v. same and Somers v. same, 42 St. Rep., 247, Peckham, J., said “ Generally in regard to the taking of land the rule may be said to be, to pay the full value of the land taken at its market price, and no deductions can be made from that value for any purpose whatever. Then, as to the land remaining, the question has been to some extent mooted whether the company should pay for the injury caused to such land by the mere taking of the other property, or whether in case the proposed use of the property taken would depreciate the value of that which was not taken, such proposed use toould he regarded and the depreciation arising therefrom he awarded as a part of the consequential damages suffered from the taking. 1 think the latter is the true rule,” citing authorities.

In the light of these cases we think Sperb v. El. Ry. Co., supra, First Department, is not sustained and a contrary conclusion was-reached in that department in Suarez v. El. Ry. Co., 39 St. Rep.549, and Malcolm v. same, 40 id., 983. But even if it could be regarded as authority we would feel bound to follow Peyser v. Met. Ry. Co. supra, until reversed by the court of appeals.

The only other question in the case is whether damages should have been allowed on account of injuries inflicted upon the premises for a time subsequent to the commencement of the action. Appellants contend they should not. The cases cited by the appellant, as far as they have any relation to the question are with one exception in actions at law. The rule in equity which seeks to render complete justice to the parties is otherwise. There the court allows damages up to the time of the trial. Mad. Ave. Bap. Church v. Oliver St. Bap. Church, 73 N. Y., 95. See also Barrick v. Schifferdecker, 123 N. Y., 52; 33 St. Rep., 485.

The judgment should therefore be affirmed, with costs.

Bischoee and Pryor, JJ., concur.


author: Per Curiam.

text:
    Mary Jones, Resp’t, v. The New York El. R. R. Co. et al., App’lts. Mary Jones, Ex’rx, Resp’t, v. The New York El. R. R. Co. et al., App’lts. Mary A. Jones et al., Resp’ts, v. The New York El. R. R. Co. et al., App’lts.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    ¡Railroad—Elevated—Benefit to property from proximity of station—Evidence.
    The only evidence tending to support the contention of an elevated railway company that certain property was benefited by the proximity of its station, was the unsupported opinion of experts. Held, that the referee properly refused to find that the premises were benefited by reason of the company’s station.
    Appeals from three separate judgments of this court, entered upon the report of a referee appointed to hear and determine the actions.

      Davies & Sapallo, for app’lts ; Sacheit & Bennett, for resp’ts.
   Per Curiam.

These actions were brought to restrain the defendants from the operation of their railway in front of respondents’ premises, Nos. 346, 348 and 350 Ninth avenue, in this city. The questions argued in the three cases are substantially the same and may be considered together. Appellants contend that the referee erred in refusing to find that the plaintiffs’ property was benefited by the increased accessibility due to the proximity of defendants’ station.

It is quite true that there is a station at this corner, but after an examination of the evidence we are not convinced that the referee erred in finding that this property had not been specially benefited by the maintenance and operation of the road and the situation of the station. There is no evidence showing that the rental value of the premises had been increased thereby. The only evidence tending to support appellant’s contention is that of certain experts, who in substance testify that in their judgment the effect of the road had a tendency to increase values because it afforded increased facilities. But the opinion was not backed by any fact on which the referee was bound to predicate such a conclusion.

Appellants also contend that the referee erred in striking out evidence on the part of the defendants. The evidence so stricken out refers to a contract relating to property on Twenty-second street, which was signed by one of the parties, but did not go through because one of the persons interested in the premises refused to sign it. It is doubtful in the first place whether this was any evidence as to the fee value of property on Thirtieth street; and in the next place, even if it were competent evidence, we do not see how the appellants were injured by its being stricken out, as the case shows that other evidence of the course of values in the immediate vicinity was freely admitted.

The only other question raised on this appeal was as to the allowance by the referee of damages caused by the running of appellants’ trains on their elevated railway. This has been discussed in the case of Smith v. Elev. R’y, a decision in which is handed down herewith.

The judgments in the three cases should therefore be affirmed,, with costs to the respondents.

Bookstaveb, Bischoff and Pryor, JJ., coficur.


author: Bookstaver, P. J.

text:
    Bernard Mahon, Resp't, v. Anna M. Guilfoyle et al., Appl’ts (3 cases).

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    Municipal corporations—Lien—Abandonment op contract after part PERFORMANCE.
    Plaintiff and G. entered into an agreement whereby G. agreed to pay plaintiff $1,500, and have the benefit of certain partly performed street grading contracts after completing the same. Six weeks after G. executed’ this agreement he died, without having paid the $1,500. His administrators did some work on the contracts, but finally abandoned them, and they were completed by plaintiff. The administrators filed liens for the work done by themselves and their intestate. Held, in an action to vacate the liens, the contract price of the work not being divisible, and the work having been abandoned uncompleted, that the administrators were not. entitled to the lien.
    Appeal from three separate judgments in favor of the-respondent and against the appellants, entered upon three-separate reports of a referee.

      Robert G. Ingersoll and Mason F. Prosser, for app’lts; L. Laflin Kellogg, for resp’t.
   Bookstaver, P. J.

These appeals present substantially the same questions, and it was stipulated that the testimony taken in any of the cases might be read in the others as if taken on the trial of that action, and it is necessary, therefore, to consider the three cases together.

From the evidence it appears, that the respondent was the owner of two contracts which he had entered into with the mayor, aldermen and commonalty of the city of New York, one for regulating, grading and curbing One Hundred and Thirty-eighth, street, from -the Boulevard to Tenth avenue, made between him and the Mayor, etc., on the 26th February, 1887; and the other for filling Edgecombe avenue, between One Hundred and Forty-first street and One Hundred and Forty-fifth street, made between the same parties on the 30th October, 1886; and of still a third for regulating, grading and filling One Hundred and Thirty-second street, from Tenth avenue to Broadway, assigned to him on the 3d of March, 1887, by Frederick Thilemann, Jr., with the work partly done. The three actions were brought, among other things, to declare the separate liens filed by the appellants on the-2d day of July, 1887, against the moneys alleged to be due on these contracts void, and to procure them to be cancelled and discharged of record. Such an action is authorized by paragraph 1829 of the consolidation act, which provides that “actions to-determine or terminate such liens may be commenced by the said contractor or the city in any court of competent jurisdiction.”

The referee has found, without exception on the part of the appellants, that on the 9th day of March, 1887, the plaintiff '{respondent) entered into an agreement with one William Guilfoyle, now deceased, by the terms of which it was agreed that Ouilfoyle should pay to the plaintiff the sum of $1,500 in consideration of the amount of money that would be due to Bernard Mahon for the regulating and curbing of One Hundred and Thirty-eighth street, from the Boulevard to Tenth avenue; and Ouilfoyle further agreed to place the excavation which was to be done on One Hundred and Thirty-eighth street from Tenth avenue to the Boulevard, on One Hundred and Thirty-second street from Tenth avenue to Broadway, and the remainder of the material from One Hundred and Thirty-eighth street he agreed to put in the filling of Edgecombe avenue between One Hundred and Forty-first and One Hundred and Forty-fifth streets, and in consideration of ■doing that work the respondent agreed to pay to Guilfoyle one-half of the moneys, after paying for the material used on said street, received from the city of Hew York for the contract relating to One Hundred.and Thirty-second street between Broadway and Tenth avenue. It is conceded that the $1,500 was not paid, and it is also conceded that the contracts were finished by the’ respondent.

It appears from the evidence that William Guilfoyle died on the 22d April, 1887, after he had performed more or less work upon these contracts; that thereafter some work was done by the appellants as his legal representatives. The referee has found that the appellants thereafter abandoned the work under the contracts, and the respondent was compelled to complete them. There is no doubt but that the evidence fully justified the referee in this finding. It was testified to not only by the plaintiff and several witnesses on his behalf, but Mrs. Guilfoyle herself practically admits it, and even admitted it in writing, although on the trial she claimed that she did not fully understand the language of the receipts given by her, as well as that she did not understand the full purport of the contract; but her acts and declarations in regard to the abandonment are clear and decisive.

This contract was an 1 entire one. It required, first, the doing of the entire work on One Hundred and Thirty-eighth street; ■second, the taking of all that excavation to Edgecombe avenue or One Hundred and Thirty-second street; third, the paying of $1,500 to the plaintiff out of the moneys obtained on One Hundred and Thirty-eighth street; and, fourth, the receipt by Guilfoyle of one-half of the One Hundred and Thirty-second street money after payment for the material. Hone of these promises and covenants on the part of ^Villiam Guilfoyle were carried out •either by him or his administrators. Hone of the contracts were fully completed and none of the moneys paid. The One Hundred and Thirty-eighth street contract was not substantially completed, as only $844 had been earned by all of the parties up to ■June 13, 1887. It is, therefore, a contract in which the price is not divisible, and in which no payment could be demanded until performed entirely, or at least substantially. Butler v. Butler, 77 N. Y., 472; Smith v. Brady, 17 id., 173; Crane v. Knubel, 61 id., 645. And it is well settled that where there is an abandonment of the work by a mechanic before its completion without any fault of the owner, there can be no lien. Phillips on Mechanics' Liens, 193; Kinney v. Sherman, 28 Ill., 520; Dennistoun v. McAllister, 4 E. D. Smith, 729; McNeal v. Clement, 2 T. & C., 363; Am. & Eng. Enc. of Law, Vol. 15, p. 78, and cases there cited.

But appellants contend that the respondent after Guilfoyle’s death made a contract with his widow, before letters of administration were granted, whereby she individually undertook to complete the work, and that thereby the personal representatives of Guilfoyle were prevented from doing it, or were relieved from the necessity of completing the work, and consequently that they had a valid lien at least for the work actually done by Guilfoyle before his death.

The difficulty with this position is that there is no finding by the referee that such a contract was ever made, nor was there any request made to him to find that fact. We have examined the testimony upon that subject, and do not think that it would have justified such a finding on the part of the referee had it been made. It is true that there was a conversation between the respondent and Mrs. Guilfoyle soon after her husband’s death and before her appointment as administratrix in regard to the continuance of the work, but we think it looked to the continuance of that work, not by Mrs. Guilfoyle on her own account, but as representative of the estate when she should have been appointed such; at any rate it is clear that nothing was done on the faith of that conversation until after she and Mr. King were appointed ■administratrix and administrator of Guilfoyle’s estate on the 30th ■day of April, 1887, and the money referred to in that conversation was not loaned until the 2d of May, 1887. Besides this, it is difficult to see how the making bf such an agreement with Mrs. Guilfoyle, the widow, could relieve Mrs. Guilfoyle, the administratrix, from performing the contract; she cannot thus separate herself into two different characters só as to relieve her in one capacity from doing the work which she undertook to do in the -other.

Had the lien been filed merely for work done by William Guilfoyle in his lifetime, and which he was prevented from completing -on account of his death, it is possible that it would have been held sufficient to maintain an action upon a quantum meruit under such' circumstances. But it was not the theory upon which the liens were filed. The appellants contend either that they had fully completed the work or had been prevented from so doing by the respondent, which is not the case.

Having arrived at this conclusion, it is not necessary to determine whether or not the lien is invalid because the defendants have not stated therein the terms, time given and conditions of the contract, or whether or not the lien is invalid because the personal representatives of the deceased had no right or authority to file the lien for work done during the life of William Guilfoyle. It may be further said that the conclusion to which we have arrived works no substantial injustice to the appellants. The plaintiff was entitled to $1,500 and to have his work done on One Hundred and Thirty-eighth street, and, besides that, filling furnished for One Hundred and Thirty-second street and Edgecombe avenue. Instead of receiving this money with this work, he was obliged to finish the work under the entire contract under penalties for delay imposed. Up to July 15, 1887, he and Guilfoyle and Guilfoyle's representatives together had only earned $844.52; the $1,500 he never received. In the Edgecombe avenue contract the amount earned according to the city surveyor on the 16th of June, 1887, when betook the measurements, was 7,465 cubic yards, which at twenty-five cents per yard amounted to $1,866.25. Guilfoyle was paid $1,500 on account of this contract. Had Guilfoyle lived and kept the contract and worked steadily on it until the 16th of June, there would then have been due to him only $366.25. But from the 1st to the 16th of June the plaintiff was engaged in doing the work which Guilfoyle should have done, and it is much more than probable that that work together with the penalties would have left nothing whatever due upon that contract As to the One Hundred and Thirty-second street, contract, it was shown that the plaintiff, after the abandonment of it by Guilfoyle and his representatives, furnished 3,000 cubic yards of filling. There is no evidence from which we can determine how much filling Guilfoyle did; if he had furnished the whole remaining 4,177 yards at twenty-eight cents, there would have been due on this $1,169.56, from which should have been deducted the penalties caused by delay, leaving a balance of $489 only, of which Guilfoyle would have been entitled to one-half, $244.50, after the payment for stone, curbing, the price of-which has not been proved in this case, but which in all probability equalled this amount. Besides that, in this particular case, the respondents and Guilfoyle were jointly interested in it, and in the profits to be made from it. It is therefore difficult to perceive-how any lien could under such circumstances be acquired by one of the parties as against the other.

The judgments in each of these cases should therefore be affirmed, with costs.

Bischoep and Pryor, JJ., concur.


text:
    Florence Dudley, Resp’t, v. Robert E. Westcott, Prest., App’lt.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    1. Negligence—Evidence.
    A child three and one-third years old attempted to cross the street in-front of an approaching horse car, and, in So doing, ran between the front and hind wheels of an express wagon, which was coming up from the rear of the car, and was injured. Held, that the fact that the wagon was. being driven too fast just before the accident was not material, if there was enough to show that the accident would have occurred just the same had it been driven at a slower speed.
    .3. Same—Mother’s negligence charged to child.
    Where a child too young to charge it with personal contributory negligence is run over in the street by a wagon, its mother’s negligence in sending it into the street unattended must be charged to it.
    Appeal from a verdict of the general term of the city court, affirming a judgment entered on the verdict of a jury.

      B. Luther Hamilton {Austen O. Fox, of counsel), for app’It; Jeroloman & Arrowsmith, for resp’t

       Reversing 40 St. Rep., 506.

   Bookstaver, J.

This action was for damages for running over the plaintiff, who, when hurt, was three years and four months old.

No evidence was offered on behalf of the defendant, apparently because it was thought unnecessary in view of the fact that Prank W. Kearney, one of the witnesses for the plaintiff, who was on that day driving a car on the Boulevard Railroad, and who was in a position to and did see how the accident happened, testified that •it occurred by reason of the plaintiff running between the front •and hind wheels of defendant’s wagon. The court charged the jury that if the child was injured by getting in between the front and hind wheels of the wagon, then the defendant was entitled to a verdict. This then became the law of the case which should have guided the jury in arriving at a conclusion, and we think in view of the evidence was a proper charge.

The same witness further testified that he first saw the child crossing from the opposite side of the street and that he had to stop his car to let her cross ahead of him; that the child continued in her course and just met the rear wheel of the wagon, which struck her on about its last revolution as the driver was stopping his wagon. Several other witnesses were called by the plaintiff, but none of them was near enough to see the details of the accident. Mr. O’Connell, the only other witness who says he ■saw the child knocked down, was at some distance from the scene, and he says he first saw her as she was being knocked down and falling under .the wagon wheel. He testified in corroboration of Kearney’s:testimony that he put his hand on the spoke of the wheel and took it from_the child’s shoulder; thus showing that the hind wheel had not entirely run over the child, -and confirming Kearney’s evidence that the wagon had almost stopped at the time.

There is no evidence that the driver saw, or could have seen, the child or have avoided the accident by the exercise of ordinary care, as she apparently emerged just in front of the horses attached to the Boulevard car.

It is true that the case abounds in evidence tending to show that at one time the driver of defendant’s wagon was lashing his horse and going at a high rate of speed. But we think it clear that this must have been checked before the accident, for the wagon could not have been stopped in the distance it was if he had then been going at a great rate of speed. In Buckley v. G. P. & R. Mfg. Co., 113 N. Y., 540, 546; 23 St. Rep., 618, the court said: “ After the general charge of the judge to the jury, the counsel for the defendant said this to him: ‘I understand your honor to tell the jury, and I ask to have it repeated, that if it .happened from-a slip and was an inevitable accident, that there can be no recovery anyway, whether it was a dangerous employment or not’ And the judge replied: ‘I think I have charged that substantially; I cannot repeat it’ That charge required a verdict for the defendant The evidence is undisputed, all coming from the plaintiff himself, that the accident did happen from a slip, and was, therefore, in that sense inevitable. We are, therefore, of opinion, as this case now appears on the record, the trial judge having held as the law of the case that the defendant was not responsible for any carelessness on the part of O’Rorke, that the plaintiff should have been nonsuited.” And we think that that reasoning is decisive of this case.

Fenton v. Second Ave. R. R. Co., 126 N. Y., 625; 36 St. Rep., 385, was a case where the plaintiff’s evidence tended to show that, he fell on the track from ten to fifteen feet in front of the car, and that the brake was not applied until the car struck the boy.” The court reversed the judgment for the plaintiff, saying: “ There is no evidence that, by the exercise of all the vigilance that the law requires of drivers under such circumstances, they could, after the boy had fallen upon the track, have arrested the car in time to save him from injury. In other words, there must be evidence not only of negligence, but of negligence that caused the injury.”

It is not material if the defendant’s servant was driving too. fast at one time, if there is enough to show that the accident would have happened just the same even had he been driving at a slower speed.

In this case from the only real evidence as to the occurrence of the accident, it is apparent that the child collided with the wagon after the horse and the front wheels had passed in safety; she was apparently injured from crossing directly in front of the horse car; and in endeavoring to avoid that danger rushed into another. The accident arose from her own act and not from any 'act of the defendant

But respondent contends that the plaintiff was a child between three and four years of age, and was non sui juris, hence personal negligence could not be attributed to her. If the child was non sui juris, then it was negligence on the part of plaintiff’s mother to send her into the public street or to permit her to go unattended into the street, which should have been passed upon by the jury under proper instructions.

In Barry v. Second Avenue R. R. Co., cited by the respondent. and reported in 41 St Rep., 342, it was held that there was some evidence to warrant a finding by the jury that the parent exercised ordinary care to prevent the child going into the public street unattended. Within the case there cited and the principles laid down by the court, per Pryor, J., the judgment in this case should be reversed unless there is some evidence of care on the part of plaintiff’s mother exercised to prevent the escape of the child into the public street or to attend it while in the street

The only evidence upon the subject is that of the mother, and! from a careful examination of it we are unable to discover any testimony on her part to show any care whatever. On the contrary, the evidence is plain that in the language of' the court in the case of Hartfield v. Roper, 21 Wend., 615, the mother did allow the child to go into the highway unattended. On this question see cases cited in Barry v. Second Avenue R. R. Co., supra, and Flynn v. Hatton, 43 How. Pr., 333; Callahan v. Bean, 9 Allen, 401; Wright v. Malden & Melrose R. R. Co., 4 id., 283; Lehman v. Brooklyn, 29 Barb., 234; Thurber v. Harlem B., M. & F. R. R. Co., 60 N. Y., 326-333; Stillson v. H. & St. Jo. R. R. Co., 67 Mo., 671; Bay Sh. R. R. Co v. Harris, 67 Alabama, 6; Pitts., Fort W. & C. R. R. Co. v. Vinings, Admr., 27 Indiana, 513; Cauley v. Pitts., Cin. & St. L. R. R. Co., 95 Pa. St., 398; 5 Southern Law Review, N. S., 684.

The judgment should therefore be reversed, and a new trial ordered, with costs to the appellant to abide the event

In ordering a new trial, however, we do not intend by anything that has been said to intimate that the case is one which should not be submitted to the jury upon the question of contributory negligence, but only that such submission should be accompanied with proper instructions in regard to the care the parent should; exercise toward a child of such tender years.

Bischoff, J., concurs; Pryor, J., concurs in result.


text:
    William H. Brandt, Resp’t, v. William Verdon et al., Resp’ts, and Lizzie M. Moses, App’lt.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    1. Mechanics’ Liens—Notice—Partial completion oe work—Fact must BE STATED.
    A notice of mechanics’ lien, where the whole of the work has not been performed, must state that fact, and how much has been performed, and a failure so to do invalidates the lien.
    2. Same—Several contracts—One not completed.
    But a notice of lien which sets forth several contracts, and alleges the completion of all, will not be vitiated as to the other contracts, because one is in fact not completed.
    Appeal by the defendant, Lizzie M. Moses, from a judgment entered upon the report of a referee, for the foreclosure of certain, mechanics’ liens and directing the sale of the property.

      Putney, Bishop & Slade (Sidney H. Stuart, of counsel), for app’lt; George W. Carr, for pl’ff, resp’t; Thomas C. Ennever, for defendants Verdón et al, resp’ts.
   Bookstaver, J.

The defendant and appellant Moses, in 1887 and 1888, was the owner of certain property in West 134th street, on which she erected five houses. The plaintiff and the other defendants were mechanics who did certain work and furnished certain material on those houses. The respondents Verdón and Knapp had commenced their separate action to foreclose their lien, but by an order of this court their action was consolidated with the plaintiff’s, and they thereafter served a proper answer in that action. The issues so joined were referred to Walton Storm, Esq., to hear and determine, and after hearing the evidence he reported in favor of all the lienors for amounts somewhat less than claimed by them respectively. On the argument appellant’s counsel did not specially point out any errors committed by the referee in the admission or exclusion of evidence, nor has he done so in his brief. We have not, therefore, deemed it necessary to examine the exceptions to such admission or exclusion in detail.

The plaintiff, Brandt, filed his notice of lien on or about March 9, 1888, which contains the following: “ The nature and amount of the labor and service performed, and the materials furnished, is as follows: That on or about the 10th day of November, 1887, the said William H. Brandt entered into three several contracts with Lizzie M. Moses, to do the slating, tinning and iron work on the premises hereinafter mentioned and described, and said Moses promised and agreed to pay for said work the sum of twelve hundred and fifty dollars. That said William H. Brandt has actually done said work on said premises. That said Moses has paid on account of said contracts the sum of $340, and there still remains due and unpaid the sum of $910."

The complaint in substance alleges the same thing. The referee has found however, that instead of three, there were four separate contracts, which in the aggregate amounted to the sum of $1,250. But the appellant has made no point of this variance, and we do not see that it could have been of any material injury to her. The referee has further found that two of the contracts were partly in writing and partly verbal, and the other two were wholly in paroi. He has also found that seventy-five per cent, of the amount of each contract was to be paid as the work advanced. To these findings the defendant Moses excepted, and on this appeal contends that the referee erred in this respect, especially as to the two contracts which she claims were wholly in writing; but what are called contracts consist of Tetters which are only estimates by the plaintiff as to what certain work would cost, and acceptances by her of those estimates; none of them in any way mention the terms of payment and it is quite probable these were agreed on verbally, as the plaintiff testified. There certainly is not that preponderance of evidence in favor of the appellant which would lead us to reverse the referee’s conclusion on these questions.

The referee has further found that the first, second and fourth contracts were performed, with some trifling exceptions for which proper deductions were made, and that they were not fully performed on account of defendant’s neglect. The evidence as to the performance was very contradictory, but we see no reason for disturbing his findings in respect to these contracts.

The third contract was one by which the plaintiff agreed to put up three bay windows on the houses in question, according to plans submitted to him, for the sum of $490, payable as the others were. From the evidence it appears that the plans for these -windows as filed with the building department, were in accordance: with the building law requiring iron frame work for the bays, but that the plans given to the plaintiff only called upon him to recover wooden frame works with iron, making an outward appearance in conformity with the law, but in reality evading it.

This we think must have been known to the plaintiff to have been an evasion, but in the view we take of this case, it is not necessary for us to decide now whether or not a mechanic will be permitted to acquire a lien for work done by him contrary to law, and in order to evade it, for the referee has found the work called for under this contract was not fully completed, but that nearly one-third was left undone. He also fails to find that what was done was done in a good and workmanlike manner, and in his opinion says it was not. He, however, finds that as the plaintiff at all times was ready and willing to complete the contract if the defendant would pay him according to its terms, that he should have a lien for the amount of work actually performed by him, which he found to be $332. This is in conformity with the law. Haden v. Coleman, 73 N. Y., 567; Graf v. Cunningham, 109 id., 369; 15 St. Rep., 524.

This raises the only real questions of law in this branch of the case. As before stated, the plaintiff in his notice of lien claimed he had “actually done said work on said premises,” meaning that he had done all the work required by his contracts, and further claimed that there remained “due and unpaid the sum of $910,’* being the full contract price for all the work. These statements, in view of the referee’s findings, .are evidently untrue; all the work had not been done, and there was due on this contract for all the work done by him under it only $322, instead of $490, the contract price. Under precisely this state of facts the supreme court in Foster v. Schneider, 50 Hun, 151; 19 St. Rep., 449, held that, where the whole of the work had not been performed, it was requisite that the notice of lien should state that fact, and state how much had been performed, and that a failure to conform to the statute in that respect made the filing of the notice invalid, so that it created no lien. This decision was followed by this court in Close v. Clark, 16 Daly, 91; 30 St. Rep., 671; and the same doctrine was announced in Luscher v. Morris, 18 Abb. N. C., 67. We consider the rule extremely salutary and useful, in order that all parties_ may be _ apprised of the true state of affairs. In the case first cited, Daniels, J., delivering the opinion of the court, referring to the notices of lien, said: “ They should have stated the extent of the services performed, and of the material used, and of the residue of the work remaining to be performed. * * * „

required this to be done in clear and direct language. And it is one of the directions to be observed by the claimant to insure the creation of the lien for the amount of the indebtedness upon the property benefited by the work and material. * * * It was intended in this manner to exact a truthful statement of the facts to be contained in the notice, and that probably was intended for the benefit of other claimants as well as of the owner of the property and the truthful information of the court, and the courts can no more dispense with the observance of this requirement in making and filing the notice than they can with any other direction required to be observed for the purpose of creating a lien upon the property.” And again, “ This proceeding is wholly statutory and to entitle a claimant to its benefits the directions of the statute must be substantially observed; if they are not, the lien cannot be secured, and the court has no power or authority to sustain the proceeding, for a substantial compliance with the requirements of the statute is necessary to confer jurisdiction, and when they are omitted in any essential particular, as they were in this case, the benefit secured by the statute cannot be obtained,.” (Citing authorities.) Notwithstanding this clear and explicit language, even repeated to give it emphasis, plaintiff’s counsel contends that the learned judge did not mean what he says, for in that case he did not entirely vacate the lien, but merely subordinated it to the other liens. The reason for this is apparent from the decision, where it says (p. 156) “ Neither of the other parties affected has complained of the conclusion of the referee; no change can be made, but as to the parties appealing, they are entitled to be paid in the order mentioned by the referee in his report, prior to any payment being made to the respondent.” That is to say, those who did not complain by appeal were not entitled to relief at the general term. But if language means anything, he did decide that as to those who had appealed, the lien was void. We, therefore, conclude that the referee erred in allowing a lien to the amount of $332 under the third contract.

But this conclusion raises another question, and. that is, whether or not the notice, being inoperative to effect a lien under the third contract, is sufficient to create a lien under the other contracts. As far as we are aware, this question has never been determined. In all the cases before cited, the notices were founded upon single contracts, although in Foster v. Schneider, supra, separate liens were filed upon each house, and the court strongly criticised such a course. In this case, however, there were four separate contracts, and but one notice in which the various contracts were mentioned. It would have been proper to have filed separate notices under each contract; had this been done the notice actually filed would have complied with the statute as to the first, second and fourth, and failed as to the third. Consequently neither the owner nor any of the lienors .could have been misled as to the performance of these contracts; in fact, as found by the referee, it was correct as to them. The plaintiff followed the better practice in filing but one notice for all the liens, and should not fail in three because the .notice was misleading as to a fourth. We think justice and equity will be done by holding the notice good as to the first, second and fourth contracts, and bad as to the third. But, for the error before pointed out, the judgment so far as it affects plaintiff’s claim must be reversed, and a new trial ordered, with costs to the appellant to abide the event, unless the plaintiff within five days elects to reduce the sum awarded him by $332, as of the date of the entry of the judgment, together with any interest which may have been added on so much of the award on the entry of judgment, and if so reduced, the judgment as to the plaintiff should be affirmed, without any costs of this appeal to either party.

As to that branch of the case which refers to the defendants, Yerdon & Knapp, appellant urged the same defective notice, but this we think was not sustained, for their notice did comply with the statute, in that it stated the nature and amount of the work to be performed and materials to be furnished, and that all of it had been done and furnished except $200 worth, which had not, and contained a detailed statement of what had and had not been done or furnished.

These defendants had the contract for doing, the plumbing and gas fitting in these buildings, and the laying of sewer pipes, etc. One of the principal objections to the work done by them under this contract was in respect to the way they had laid the drain and sewer pipes, and that it was not done in a good and workmanlike manner nor according to the specifications or the contract. The evidence does undoubtedly tend to show that when this work was done it exhibited serious defects, which caused the water to back up and in certain instances to overflow the cellar, or a portion of it. This work was all included under that portion of the contract upon the completion of which the first payment became due, and the referee has found that the defendants performed their work in accordance with the plans and specifications, and that the same was approved by the board of health, and has also found that the work was approved by the architect and a certificate therefor was given to the defendants. It is true that all of these findings are controverted by the defendant-appellant, but we think that the evidence, if not conclusive, was at least sufficient to warrant his findings in; that respect, and we will not disturb them.

The next important objection urged against the work done by the defendants, was the imperfect manner in which the leaders to the houses were put up, and the failure to properly pack the pipes in mineral wool, and in consequence thereof the pipes burst or leaked and damage was done to the building. The evidence tends to show that the packing of the pipes in mineral wool was not required by the defendant Moses, but that she through her agent modified the contract and altered the specifications in such a manner that the defendants, Yerdon & Knapp, could not pack the pipes with mineral wool, and that such non-packing of the pipes was not only consented to by the defendant Moses, but that it was through her own acts and directions given by her agent that the defendants, Yerdon & Knapp, could not pack the pipes in this manner; also that the defendants, Yerdon & Knapp, placed the pipes in position in accordance with the modifications of the contract, and that the bursting and consequent leakage was not caused by any negligent or unskilful workmanship on their part, but in consequence of the unfinished condition of the houses and because they were not properly taken care of by the defendant Moses. The referee has found that all the work was done in a skilful and workmanlike manner, and that the reason for the nonperformance of certain of the work was because the defendant Moses did not furnish the material which she by the contract was to have furnished and also by reason of her non-payment of the instalments as they fell due.

.The appellant contends that she was justified in not making the second and third payment because of the refusal of the architect to give the proper certificates. But the referee has found, and we think upon sufficient evidence, that the defendant Moses, through her agent, waived the certificate as to these payments; and from the evidence of the architect it seems to us that his objection to the giving of the second certificate was for trifling matters, the performance of which, as before stated, the defendant Moses waived. The non-payment of the second instalment according to the terms of the contract relieved him from going on with the work contemplated under the third payment, and the referee properly found the amount of work which he had actually done under that part of the contract. Haden v. Coleman; Graf v. Cunningham, supra.

We therefore think there is no error in regard to his conclusions as to the claim of Yerdon & Knapp, and that the judgment as to them should be affirmed, with costs to the respondents.

Bischoff and Pryor, JJ., concur.


text:
    William P. Hawes, App’lt, v. Charles G. Dobbs et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    1. Tbial—Equity—Jury.
    Where a complaint sets forth merely an equitable cause of action and asks for equitable relief only against several defendants, arid the court has found no ground for equitable relief, but that plaintiff is entitled to damages at law against one defendant, it is proper to refuse to submit the case to the jury and to dismiss the complaint..
    3. Same.
    In such case, the rule that where the court has once acquired equitable jurisdiction it will proceed and grant relief for purposes of account or otherwise, has no application.
    Appeal from a judgment entered upon a decision rendered at the equity term of this court dismissing the complaint.

      Gilbert R. Hawes and Flamen B. Candler, for app’lt; John H. V. Arnold, for resp'ts.
   Bookstaver, J.

This action was brought in equity to have a certain agreement between Gilbert R. Hawes, plaintiff’s assignor, and Charles G. Dobbs, one of the defendants, adjudged binding on one Herman A. Bergman, another defendant; to have a deed from William H. Niebuhr, who was not a party to the action, to Agnes E. Dobbs, another defendant, declared to be solely for the benefit of Charles G. Dobbs; for a judgment declaring that the interest of Charles G. Dobbs as mortgagee of the premises mentioned in the complaint was merged into that of owner of an undivided three-fourths of such premises; to adjudge that the liens of plaintiff’s deed and mortgage on the said premises were superior in equity to the rights of any of the defendants in the premises: and also for a judgment declaring that the plaintiff was the owner of an undivided one-fourth part of those premises and that he had a valid lien on a portion of the premises to the extent of $5,500 and interest. The complaint also contained a general prayer for such other or further relief as to the court might seem just and equitable.

From the evidence and the findings of the court it appears that the premises in question were conveyed by the defendant Charles G-. Dobbs to William H. Niebuhr on or about the 28th June, 1887, and at the same time what is known as a builder’s loan contract was executed between the parties; and that on the 5th October of the same year Niebuhr conveyed to Gilbert E. Hawes, plaintiff’s assignor, one undivided fourth part of the premises, and that the consideration for such deed was moneys advanced to Niebuhr by Gilbert E. Hawes, to be used upon the erection of the buildings on the premises in question under an agreement and understanding between Charles G. Dobbs and Niebuhr and Gilbert E. Hawes, whereby Dobbs undertook and agreed to protect and secure to Hawes his said interest in the premises; and that on or prior to the 18th day of January, 1888, a further agreement was entered into between Hawes and Dobbs to the effect that if said Hawes would advance certain moneys to Niebuhr, the then owner of the premises, he, Dobbs, would protect Hawes therein, and that no foreclosure should be had of any mortgage held or controlled by Dobbs which would affect such interest, and that the moneys advanced by Hawes were advanced on the faith of such agreement; that for the moneys so advanced, amounting to $5,500, Hawes took a mortgage from Niebuhr on the premises in question as security. It also appears in the findings that there was in the fall of 1887, a first mortgage of $20,000, a second mortgage of $5,000, a third mortgage of $14,000, a fourth mortgage of $46,000, and a fifth mortgage of $45,000 on the premises. The two latter mortgages were held by the defendant Charles G. Dobbs, the first of the two having been executed by Niebuhr to him upon his conveyance of the premises to the former, to secure a part of the purchase money, and the last mortgage having been given by the same mortgagor to the same mortgagee to secure the building loan before referred to. The court also found that the interests acquired by Hawes by the deed and mortgage before stated were assigned by him to the plaintiff. Both this deed and mortgage contained clauses making the several instruments and the interests thereby conveyed subject to the five mortgages first above referred to, as well as to all advances theretofore made or thereafter to be made on the premises by Dobbs. On November 2, 1887, the third mortgage of $14,000 was assigned by the then holder thereof to Sarah E. Dobbs, the mother of Charles G. Dobbs. In March, 1888, an action was brought in this court by said Sarah E. Dobbs to foreclose said last mentioned mortgage, to which action the plaintiff and his assignor as well as the defendant Charles G. Dobbs and William H. Niebuhr were made parties defendant. The two former duly appeared in the action, and the plaintiff in this action, as well as Niebuhr, interposed answers to the complaint. Judgment was, after a trial in which the plaintiff and his assignor as well as Niebuhr attended and took part, entered in June, 1888, for a foreclosure of the $14,000 mortgage, and directing the sale of the mortgaged premises under the direction of a referee appointed for that purpose. Under .this judgment a sale took place in October, 1889, conducted by the referee, and the defendant Agnes E. Dobbs, by Charles Gr. Dobbs, purchased the mortgaged premises on that sale for $87,817.78, and thereafter assigned her bid and purchase to the defendant Herman A. Bergman, to whom the referee on November 8, 1889, delivered a deed upon receiving the purchase price, which was on the same day recorded in the proper office. The court has also found that at the time of the commencement of this action, which was subsequent to all of the before mentioned transactions, Bergman was the owner of the whole premises.

' Hence it appears that neither at the time that the agreements claimed by plaintiff to have been made between his assignor and the defendant Charles G. Dobbs, nor at any time since, was the said Charles G. Dobbs the owner of the premises described in the complaint, or of any part of them. The court refused to find that there was any conspiracy between the parties defendant, or that the defendant Charles G. Dobbs or the defendant Agnes E. Dobbs had at the commencement of this action or at any time thereafter, any right, title or interest in the premises in the complaint mentioned.

This being so, this court could not impress upon the premises any lien in favor of the plaintiff by reason of any breach of the agreement or other transaction between plaintiff’s assignor and Charles G. Dobbs, who, the court found, had no ownership in the premises at the time of the commencement of this action or at any time thereafter. Besides this, there was no evidence whatever, nor was the court requested to find, that the defendants Agnes E. Dobbs and Herman A. Bergman, or either of them, had any knowledge of the alleged agreements between Charles G. Dobbs and the plaintiff’s assignor.

It thus appears that the plaintiff wholly failed to make out any case for equitable relief, notwithstanding the court has found on the evidence submitted to it that there was a breach of the agreement between Hawes and Dobbs. It seems to us, therefore, that his remedy would be by an action at law, where if he proves to the satisfaction of a jury there was a breach of the contracts alleged by him and he suffered thereby, he1 may recover damages therefor.

Where a complaint sets forth merely á cause of action in equity and equitable relief only is asked for, as was done in this case, even if the proof shows a right to a legal remedy, the plaintiff cannot obtain it in that action. And so where a complaint is drawn only as in a common law action, equitable relief cannot be granted to the plaintiff in that action. The clear distinction between equitable and legal causes of action, and the remedies appropriate to them, still exists, and a recovery must be had secundum allegata et probata. This has been stated in many reported cases, among them being Heywood v. Buffalo, 14 N. Y., 540; Bradley v. Aldrich, 40 id., 504; Mann v. Fairchild, 2 Keyes, 111; Peters v. Delaplaine, 49 N. Y., 362; Graham v. Read, 57 id., 681; Stevens v. Mayor, etc., 84 id., 296; Gould v. Cayuga Nat'l Bk., 86 id., 83; Phelps v. Mayor, 25 Abb. N. C., 156; Arnold et al. v. Angell, 62 N. Y., 508; the latter case we think decisive of this question.

But the appellant contends that if the court could not grant equitable relief, it should have awarded legal relief in a personal judgment for damages to be assessed by a jury or otherwise, and that the court having once acquired jurisdiction and entertained the case, it was error to dismiss the complaint on the ground that the plaintiff is not entitled to equitable relief; and in support of this contention cites various authorities. But we think the authorities before cited fully sustain the learned court in arriving at the -conclusion it did in respect thereto. It is quite true that where a complaint states facts which, if proven, would entitle the plaintiff to either equitable relief or a legal remedy, the averments of the complaint being broad enough, and the demand for judgment being appropriate, the action will be presented in a double aspect to the court, and the court will retain it, and upon denying equitable relief will allow the parties on the pleadings as they stand to test their legal rights in a proper way. Sternberger v. McGovern, 56 N. Y., 12; Seeley v. N. Y. Nat. Ex. Bk., 8 Daly, 405; aff’d 78 N. Y., 608; Cogswell v. N.Y., N. H. & H. R. R. Co., 105 id., 319; 7 St. Rep., 203. But that is not true of either the complaint or the prayer for judgment in this case. There are no allegations of ■damage; there is no prayer for a money judgment.

It is also true that there are other cases in which where for any cause, by reason of anything that has taken place after the commencement of an action in equity, the equitable relief prayed for cannot be granted, that the court will proceed to award such money judgment as may be proper compensation for the injury done. But that is not this case, for the complaint is founded upon breaches of an agreement which took place before this action was commenced, and the action was commenced in consequence • of such breaches. And quite likely the court could in this case have awarded a money judgment had it found that the defendants Agnes Dobbs and Bergman knew of the agreement between Hawes and Charles €r. Dobbs, or that he had any interest in the premises in question either directly or held in trust for him by ■ either of the other defendants. But this the court refused to do.

This case is not like those cited by appellant’s counsel where it has been held that where the court once obtains jurisdiction it will proceed and grant relief for the purposes of account or otherwise, because the complaint presented a purely equitable cause of action, and on the trial the plaintiff utterly failed to prove his •cause in equity. This being so, as well might a court of equity be compelled to try an action upon a promissory note provided the complaint was so framed as to present a case for equitable relief when in reality there was none. IT or in such a case can it be .necessary for the defendants to plead that a court of equity has no jurisdiction of the cause of action, because the complaint presents a cause for equity and nothing else.

Inasmuch as this action could not be sustained in equity, it was no error in the court below to deny the motion of the plaintiff for permission to go to a jury on issues framed. ' We have examined the various alleged errors of the court in the finding which it-made in favor of the defendants, and the refusal to find other requests by the plaintiff, and we think that his conclusions upon the evidence offered fully justified the findings of fact made by him and the conclusion of law to which he came.

The judgment should therefore be affirmed, with costs.

Daly, Ch. J., and Pryor, J., concur.