text:
    Sells E. Woodhull, Resp’t, v. The Mayor, etc., of the City of New York et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 16, 1894.)

      1. Municipal corporations—Liability for acts of officers.
    A city is not liable for the wrongful acts of its policemen.

      2, Same.
    But the city of New York is liable for the wrongful arrest of a passenger on the New York and Brooklyn Bridge Railroad by a person who was at the time acting as a guard on the car, though he was a bridge policeman.
    Appeal from a j udgment in favor of the plaintiff.

      Theodore Connoly, for app’lts; Paul M De Fere, for resp’t.
   O’Brien, J.

It is conceded that at the time of the acts complained of the defendants owned and operated a railway across the New York and Brooklyn bridge, and were engaged in carrying passengers for hire on said railway. The action was for damages for the illegal arrest and false imprisonment of plaintiff under circumstances which may be briefly narrated. On May 19, 1890, after plaintiff had paid his fare to be carried by the railway from the city of Brooklyn to the city of New York, and while in the act of entering one of the cars, a person who was undertaking the ordinary duties of a guard, in closing the door of the car, shut it against and upon the leg of plaintiff; and, as the result of the remonstrance by plaintiff against such treatment, he claims that he was, without warrant or cause, imprisoned and detained in the car, and forcibly prevented from leaving it upon its arrival in the city of New York, and was brought back to Brooklyn, and taken before one of the chief employes of the defendants about the bridge, charged with assault and battery, and thereafter taken through the public streets of the city of Brooklyn to a police justice, and was there again charged with the assault and battery, and was detained and imprisoned in the prisoners’ room or pen attached to the court room of the police justice, and in the county jail of King’s county, for several hours. Having given bail, he was some™ days afterwards tried and acquitted. The defense of reasonable cause, upori conflicting evidence, was presented to the jury, and they reached the conclusion that the plaintiff was not guilty of assaulting the person who closed the door of the car upon his leg, and that his arrest was unjustifiable. The answer, 'while admitting the allegations of arrest and detention, alleged that one of the police officers employed to patrol the bridge and to preserve order thereon, being a peace officer, did arrest the plaintiff for an assault and battery alleged to. have been committed in his presence, denies that said arrest was made in the discharge of any duty owing by the officer to the defendants, and that it was made in the discharge of the officer’s duty as a peace officer of the state of New York.

It is not our purpose to review the authorities which fully sustain the appellants’ position, that, if the person here causing the arrest was a peace officer of the state, the defendants would not be responsible for his tortious acts. We need but to refer to the leading case of McKay v. City of Buffalo, 9 Hun, 401, affirmed without opinion in 74 N. Y. 619, which is authority for the proposition that the police officers of a municipal corporation, are not to be deemed its servants or agents in such a sense as to render it responsible for the damages occasioned to third persons by a failure on their part to duly and properly discharge the duties imposed upon them; and in the course of the opinion it is said :

“Where it is sought to make a municipal corporation liable for the acts of its servants or agents, the cardinal inquiry is whether they are servants or agents of the corporation. If the corporation appoints or elects them, and can control them in the discharge of their duties, and continue or remove them, can hold them responsible for the manner in which they discharge their trust; and if those duties relate to the exercise of corporate powers, and are for the peculiar benefit of the corporation and its local and special interest, they may justly be regarded as its servants or agents, and the maxim of respondeat superior applies. But if, on the other hand, they are elected or appointed by the corporation, in obedience to the statute, to perform a public service not peculiarly local or corporate, but because this mode of selection has been deemed expedient by the legislature, in the distribution of the powers of government, if they are independent of the corporation as to the tenure of"their office and the manner of discharging their duties, they are not to be regarded as the servants or agents of the corporation for whose acts or negligence it is impliedly liable, but as public or state officers, ■ with such powers and duties as the statute confers upon them, and the doctrine of respondeat superior is not applicable. This is the doctrine" laid down by Mr. Dillon. Dill. Mun. Corp. § 772. In the next session of his work (§ 773) he says: 1 Agreeably to the principles just mentioned, police officers appointed by a city are not its agents or servants, so as to render it responsible for their unlawful or negligent acts in the discharge of their duties.’”

See, also, 2 Dill. Mun. Corp. (4th Ed.) § 974.

The law being thhs settled, it would follow that,, if the appellants’ contention were correct,. i. e. that the person causing the arrest was in a strict sense a policeman, and, as such, an agent of the state, then no liability for his acts would fall upon the defendants. When a person possessed of the ordinary powers of a police or peace officer is the agent or servant of the state or of an individual or corporation, be it private or municipal, is not always easy to determine. Without discussing cases relating to individuals or private corporations, we have for our guidance, as applicable to municipal corporations, a rule presented in the well-considered case of Maxmilian v. Mayor, 62 N. Y. 164, which was a case in principle like this, wherein tire liability is to be determined by the application of the rule of respondeat superior. As therein said:

“ This rule of respondeat superior is based upon the right which the employer has to select his servants, to discharge them if not competent or skillful or well behaved, and to direct and control them while in his employ.”

And in speaking, with respect to municipal corporations, of the test to be applied, the opinion continues:

“ There are two kinds of duties which are imposed upon a municipal corporation : One is of that kind which arises from the grant of a special power, in the exercise of which the municipality is as a legal individual; the other is of that kind which arises, or is implied, from the use of political rights under the general law, in the exercise of which it is as a sovereign. The former power is private, and is used for private purposes; the latter is public, and is used for public purposes.”

And, as correctly stated in the headnote, it was therein decided that where by legislative enactment a municipal corporation is required to elect or appoint an officer to perform a public duty laid, not upon it, but upon the officer, in which it has no private interest, and from which it derives no special benefit or advantage,-such officer is not a servant or agent of the municipality, and for his negligence or want of skill in the performance of his duty, or for that of a servant whom he employs, it is not liable.

With these principles to guide us, it remains to be determined upon the facts of this case whether or not the defendants were liable for what the jury has found to be their wrongful act in causing the plaintiff’s arrest and imprisonment. It was shown on the part of the plaintiff that, as he reached the train platform and proceeded to enter one of the cars by its side center door, he saw there a person in uniform, Bishop by name, stationed at the door, and acting as a trainman or guard, performing the usual duties of a trainman or guard, assisting passengers in or out; that he had been frequently seen acting in the same capacity and performing the same duties. Upon his own examination, Bishop stated that in standing at the door and shutting it he did so because the gong had struck, “ and my orders were to shut the door when the gong struck.” He further testified, however, that he had been a bridge policeman on the New York and Brooklyn bridge for nearly ten years, and that he was appointed a policeman by the trustees of the bridge. But with respect to his duties, in addition to what he had stated above as to obeying orders and shutting the door when the gong struck, he testified that his duties were to shut the door instantly upon the gong striking. It was further made to appear that the bridge trustees, representing the defendants, appointed two distinct classes of employes, whose dress was different, viz., guards and conductors, wearing a cap with a peak on the top. and policemen who wear a helmet; that the former were appointed under § 6 of the act of 1875, and the policemen under § 8 of the same act, which provides among other things that “policemen so appointed shall have and possess all the powers of policemen of the cities of New York and Brooklyn.” Although pursuant to the act, the bridge trustees, acting on behalf of the two municipalities, have an undoubted right to select persons as peace officers, upon whom is conferred the same authority as policemen in either city, the question still remains whether they aré servants or agents of the state or the servants or agents of the municipalities. When we remember that the bridge, though in some sense a public structure, has been erected as a private enterprise by the municipalities, who maintain thereon a railway for the carriage of passengers for hire, and that for such accommodations of carriage as they afford to ¡versons or vehicles they áre remunerated, and that each municipality has a direct and special benefit from the performance of such work, , and that the structure itself is a local enterprise, in no way connected with the exercise of any political power granted by the state, or which it enjoys or exercises 'in common with other political divisions of the state, we dó not think that it can be held that the persons selected by the municipalities as guards or trainmen, and who are engaged in discharging the duties devolving upon those who control the structure, whether they are called guards, trainmen, or policemen, are in any sense the agents or servants of the state. When to these considerations are added the facts that the persons called bridge policemen, in addition to the power which they possess of preserving the peace, are engaged in discharging the ordinary duties devolving upon a trainman or guard, under orders, and where it appears that their selection,, appointment, pay, removal, and their entire conduct in discharge of their duties are ■directly contrplled and regulated by the trustees whom the municipalities have selected to manage on their behalf the affairs of the bridge, then we do not think there can be much hesitation when, in applying the rules, we reach the conclusion upon the facts here appearing that the attendants on the bridge, by whatever name known, are the agents and servants of such municipalities, for whose negligence and wrongful acts they are liable upon the doctrine of respondeat superior.

In the case of Walsh v. Mayor, 107 N. Y. 220; 11 St. Rep. 401, in the course of the opinion, page 224, 107 N. Y., and page 403, 11 St. Rep., it is said:

“ The bridge was to be completed and managed on behalf of the two cities jointly. * * * The trustees were to be appointed by the city officials of the two cities. All the real estate purchased by the trustees was to belong to the two cities jointly, and the bridge, and all its appurtenances and all the property connected with it, was - |o belong absolutely to the two cities, in shares to each of the cities equal to the amount paid by them for the construction of the bridge, and for the land and appurtenances thereof. All the revenues of the bridge were to belong to the two cities, and were to be used for the payment of the indebtedness created by the cities for its construction. As the bridge is the property of the two cities, any revenue derived therefrom; after the payment of debts created for the construction thereof, would go into the treasuries of the two cities. So, in every sense and in every view the bridge was constructed and is managed for the two cities, and the trustees appointed by the city officials represent the two cities as their agents. Hence they and the persons employed by them are the ageiits and servants of the cities, for whose careless and negligent acts they are liable.”

This case would be a direct authority were it not for the distinction sought to be made from the circumstance that the person responsible for the arrest was appointed under the designation of a policeman,. and possessed the ordinary powers of a policeman. This fact, it is insisted, is controlling as exempting the defendants from liability. We think it would be giving unusual force to the fact that the pérson committing the acts, because possessed of the powers of a peace officer, was thus created a state officer, although engaged in discharging a duty which devolved upon the defendants as common carriers of passengers in and about their cars. The selection of the employes, pursuant to the authority of the legislature, not for a public purpose, but for their private benefit and emolument, seems to place the cities with respect to their liability for the acts of those whom they thus select in the category of private corporations. When we consider, therefore, the relation which existed between the plaintiff and the defendants as common carriers for hire, and the obligations imposedt upon them as such, which are clearly set forth in the case of Dwinelle v. N. Y. C. & H. R. Railroad Co., 120 N. Y. 122; 30 St. Rep. 578, we think it follows that a failure to discharge the obligation thus imposed upon defendants as common carriers, due to the negligent pr unlawful acts of those whom the cities had selected to. discharge such duties, creates a liability which cannot be evaded by their •either calling such servants policemen or conferring upon them the powers which are ordinarily possessed by police officers; because, if liability could thus be evaded, all that would be necessary for the trustees to do would be to designate all their servants as, and confer upon them the powers of, peace officers, and no matter how negligent or wrongful might be the conduct of such persons while acting within the scope of their employment, and in discharging the duties which devolve upon the cities as common carriers, those who might suffer from their failure to discharge the obligations resting upon the cities as common carriers of passengers would be remediless. There is nothing, therefore, in the point made by appellants that the employe who primarily committed the wrong was a policeman, because he was nevertheless an employe, and engaged in the discharge of his duties. Under § 58, c. 565, of the Laws of 1890 (General Railroad Law), conductors and brakemen on steam railroads may be appointed policemen, and in practice often are; which statutory provision has been long a part of the law of this state. Laws 1863, c. 346; Laws 1880, c. 223. In one sense, every citizen is a policeman, having power to arrest any person who commits a crime in his presence, or any person who has committed a felony, though not in his presence. Code Cr. Proc. § 183. We do not think that it could be seriously argued that a railroad could escape liability for an unjustifiable arrest made by a conductor-policeman while engaged in his duties as a conductor. As well might the railroad say that he made the arrest as a citizen (if he did not happen to be a policeman), and that therefore it was not liable for his acts. This disposes of the most serious question in the case.

We have been referred to some exceptions taken to rulings excluding questions directed towards showing why the arrest was made, and upon what ground, and as to how the assault occurred; but this subject having been fully gone into, and it’being simply an exercise of discretion of the trial judge in limiting such cross-examination, we do not think that such a line of inquiry, because stopped by the trial judge, would justify a reversal of the judgment. So with respect to questions calling for the conclusion of the witness Bishop, requiring him to state by what authority he , placed the plaintiff under arrest. The form of such questions, as calling for a conclusion, was objectionable; but, apart from this, it will be seen that we have discussed the question upon ,the theory that it was established by a fair preponderance of evidence that Bishop was known and appointed as a bridge policeman, and, as will appear from the quotations already made, we„ have commented upon what his duties were, so that the defendants in no way are prejudiced by the exclusion of such questions, because we have from the testimony assumed the most favorable view that could be claimed by the appellants. Other minor exceptions have been called to our attention, but we do not regard them as meritorious or requiring comment Upon the question of damages, though reduced by the trial judge, the amount is perhaps a trifle high, but not so excessive as to require us either to further reduce it or to set aside the verdict and grant a new trial upon this ground.

Upon an examination of the entire record, and in view of the disposition made by requiring a reduction of the original verdict by the trial judge, we think that the judgment as entered does substantial justice, and should not be reversed. Our conclusion, therefore, is that the judgment and order should be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Cullen, J.

license: Public Domain

text:
    The People ex rel. George Kehoe, App’lt, v. Thomas Fitchie, as Supervisor, etc., et al., Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed February 1894.)

    1. Supervisor—Term of office—City war®.
    The office of supervisor of a city ward is not within the limitations and restrictions of article 10 of the Constitution, but is wholly governed by legislative enactment.
    1. Same—Vacancy.
    A failure to elect a successor in office does not render such office vacant.
    3. Same—Common Council—Veto.
    The mayor has power to veto the action of the common council in making appointments to fill vacancies.

      Appeal by the relator, George Kehoe, from an order of the supreme court, made at the Kings county special term and entered in the office of the clerk of the county of Kings on the 1st day. of February, 1894, denying the relator’s motion that a peremptory writ of mandamus issue, without costs.
    It appeared by the petition in this matter that George Kehoe was, on the 80th day of December, 1898, appointed supervisor of the eighth ward of the city of Brooklyn, by the common council of said city, to fill a vacancy then existing in that office. By the answer of the respondent it appeared that the minutes of the meeting containing this resolution of the common council were presented to the mayor of the city qf Brooklyn on the 2d day of January, 1894, and that on the 12th day of January, 1894, the mayor vetoed the minutes, or that portion of them by which Kehoe was appointed supervisor.
    It further appeared by the affidavit of the respondent that on October 25, 1893, Supervisor Henry F. Stickevers died, creating a vacancy in the office of supervisor for the eighth ward of the city of Brooklyn. This was twelve days prior to election day, 1893. On November 20, 1893, the common council of Brooklyn, pursuant to provisions of chapter 35 of the Laws of 1893, appointed the relator and appellant supervisor to fill the vacancy in the eighth ward supervisorship.
    On December 29, 1893, the relator and appellant filed his resignation as such supervisor with the city clerk.
    The president ex officio of the board of supervisors of Kings county refused to recognize Kehoe as a member of such board.

      Stapleton & Miles, for app’lt; George F. Elliott, for resp’ts.
   Order affirmed on opinion of Cullen, J., at special term.

The opinion of the special term was as follows:

Cullen, J.

Had the relator seen fit to stand upon his original appointment instead of resigning and receiving a subsequent appointment, his right to bold the office of supervisor until it might be filled at an election by the People would have been beyond controversy. That the office of supervisor of a city ward is not within the limitations and restrictions of article 10 of the Constitution is settled by authority. People ex rel. Clancy v. Supervisors, 139 N. Y. 524; 51 St. Rep. 837; People ex rel. Hatfield v. Comstock, 78 N. Y. 356. The term of office of the relator is, therefore, wholly governed by the legislative enactments on the subject I adhere to the view expressed on the argument as to the construction of the act of 1893 (Chap. 35), that “the first annual election after the happening of the vacancy” refers to the election itself, and not to the time prescribed in the Election Law of 1892 for the institution of the machinery for nominations, etc. It would not aid the relator’s contention to construe the term , “annual election” as “annual, election at which the vacancy can be filled,” for the statute of 1893 itself provides that the vacancy shall be filled at the general election “preceding such time, i. e. the beginning of the next political year after the happening of the vacancy. To give effect to this claim I must hold the direction as to “annual election” did not mean the occasion or time stated 'in the statute, but an entirely different time, to wit, the fifteenth day of October preceding the annual election. This is a license of construction for which there is no authority, especially • when it is considered that there is a class of public offices, vacancies in which must by the Constituti&n be filled'at the annual elections, even if such vacancies occurred the very day before the election. I refer to those offices mentioned in article 10 of the Constitution. Here the Legislature in the statute of 1893 has adopted the very words of the Constitution, and I think that the same construction may obtain in one case as the other.

But though the term of office for which the common council could fill the vacancy was limited to the first of January ensuing, jt does not follow that such term might not be extended. By the Constitution, article 10, § 2, the legislature is granted com-plete' power as to filling vacancies in office other than the offices mentioned in section 1. People v. Comstock, supra. The legislation on that subject is found in the provisions of the Public Officers Law of 1892, chap. 681,. which so far as material here are substantially re-enactments of the Revised Statutes. The 20th section of the act is as to the creation of vacancies. In the enumeration of events which shall render offices vacant a failure to elect a successor in office is not to be found. The reason of this is manifest. Section 5 of the same act provides that every officer (with certain exceptions which do not include the office here in dispute), having entered upon the duties of his office, shall continue to discharge the duties after the expiration of his term until his successor shall be chosen and qualified, except that the office shall be deemed vacant for the purpose of choosing a successor. The electors of the eighth ward failed to elect a supervisor at the last general election. This, under the provisions of the law cited, continued the term of any supervisor that might have been chosen by the common council of 1893, after the expiration of that year, until his successor should be elected, either at the general election or at a special election which the governor might order under section 4 of the Election Law.

This brings us to the validity of the relator’s appointment by the common council, and the question here involved is the power ' of the mayor to yeto the action of the common council in making such appointment. As to this question I feel bound by authority and not at liberty myself to determine it as an open question. It should be conceded as claimed that the power granted to fill vacancies in the office of supervisor is not legislative but executive. On this ground it has been held at special term in two cases that the veto did not apply to appointments. Achley's Case, 4 Abb. Pr. 35; North v. Cary, 4 T. & C. 357. Both decisions present strongly the arguments in favor of the position. But the reverse rule has been held by the courts in this district, and their decisions have been affirmed in the court of appeals.

In Cassidy v. City of Brooklyn, 60 Barb. 105, it was held that the mayor could veto a consent of the common council to an appointment of a clerk tirade by one of the justices of the peace. This case was affirmed by the court of appeals 47 N. Y. 659, on the opinion below. The same question again arose in People ex rel. Ennis v. Schroeder, 12 Hun, 413; aff’d, 76 N. Y. 160, and the decision in the Cassidy case was followed. In the opinion delivered in the supreme court by Justice Gilbert, it is said: “The reasoning in Achley's Case, 4 Abb. Pr. 35, so far as it went to restrict the operation of a similar provision of a statute relating to the city of New York to resolutions of a legislative as contra-distinguished from those of an executive nature, must have been disproved by the court of appeals. There is no such discrimination in the statute applicable to this case, and we cannot interpolate one into it.”

In the opinion delivered by Judge Miller in the court of appeals he says, referring to the acts of the common council: “ The right to veto ordinances and resolutions clearly extended to all acts of» that body whether legislative or otherwise, and in no sense can the provision (of the charter) in act of 1873 constituting the common council, be construed as interfering with the power of the mayor to interpose his objection to the appointment of the relator. The mayor had no right to act as a legislator, but he retained in full force the right to disapprove of all ordinances, acts and resolutions which did not meet his approval.” I do not see that this case can well be distinguished from those cited, and I am constrained to hold the appointment of relator invalid.

Motion denied, without costs.

The respondent should stipulate to argue any appeal from this decision at the next genera! term.


author: Bischoff, J.

text:
    The Ansonia Brass and Copper Company, Pl’ff, v. Charles A. Gerlach, App’lt, and James Curren, Resp’t.

      (New York Common Pleas, General Term,

      Filed May 7, 1894.)

    1. Appeal—Finding.
    No error is apparent from an omission to find facts as to which no finding was requested.

      2. Contract—Performance.
    A performance of a building contract, substantially and in good faith, by the contractor is all that is required to entitle him to recover.
    3. Damages—Delay in performance.
    One who has been deprived of the use of a building, in consequence of the inexcusable delay of another who has undertaken to make improvements or repairs, is justly entitled to indemnity for the loss.
    Appeal from a judgment entered on the referee’s report in favor of the defendant-respondent and against the defendant appellant. Action to foreclose a mechanic’s lien claimed pursuant to the provisions of the Mechanic’s Lien Law (ch. 342, L. 1885).

      John ’ H. V. Arnold and Gilbert W. Minor, for app’lt; Deyo, Duer & Bauerdorf (Robert E. Deyo, of counsel), for resp’t.
   Bischoff, J.

The action was originally brought by the An-V sonia Brass and Copper Company to foreclose a lien claimed by it, pursuant to the provisions of the Mechanic’s Lien Law (ch. 342, L. 1885) and against the defendants Charles A. Gerlach, as owner and contractor, and James Curran, as lienor. Subsequent to .the commencement of the action it was discontinued so far as the plaintiff was there affected and directed to proceed upon the issues tendered by the answers of the defendants, Curran and Gerlach, respectively. Curran claimed to he entitled to a lien for work, labor and services rendered and materials furnished, under two certain contracts with Gerlach, one for the supply of the steam heating and fitting „in the building known as “ The Gerlach ” and situated on Twenty-Seventh street between Sixth avenue and Broadway, in the city of New York, the other for gas piping and fitting in the same building, and for extra work. The aggregate amount of the lien claimed was $6,110.55, with interest, of which $4,300 represented a balance of $7,600, the agreed compensation under the contract for steam heating and fitting, $1,092.92, a balance of the fair and reasonable value of the gas piping and fitting, and $717.63, the value of the extra work. Gerlach denied the complete performance of the contract for steam heating and fitting on Curran’s part that the gas-piping and fitting and extra work were of the value claimed by Curran, and that the extra work was such in fact. He furthermore interposed a counterclaim against Curran for expenses alleged to have been incurred in improving the work undertaken by Curran and necessitated by the latter’s negligence and unskillful performance. The referee found, as matter of fact, that Curran had performed the contract for steam ■heating and fitting on his part except to the extent of $322.30 as to which he was prevented by Gerlach, and to $93.25 for work necessarily omitted because of changes and alterations in the plans and specifications which were directed by Gerlach ; and that, after crediting Gerlach with the payment of $3.000, admitted by Curran, there was due the latter from the former $4,184.45 under the contract last above mentioned. The referee further found, as matters of fact, that Curran, at Gerlach’s request, furnished labor and materials which were not included in the contract for steam heating and fitting, of the reasonable value of $717.63 ; and that he also furnished and fitted 16,150 feet of gas-piping for which Gelarch had agreed to pay at the rate of twelve cents per lineal foot, amounting to $1,938, on account of which there had been paid $1,000, leaving due a balance equal to $938, and interest. As additional facts the referee found that, in connection with the gas-piping and fitting, Curran supplied the labor and materials for cutting off and replacing a number of gas centers, which were reasonably worth $144, and for work in the boiler room worth $10.92. Accordingly it was adjudged that there was due Curran from Gerlach the aggregate sum. of $5,995, with interest, for which he had a lien upon the premises described in the complaint. No errors in rulings in the admission or exclusion of evidence are urged upon this appeal, and we are relieved of inquiry concerning the sufficiency of evidence in support of the counterclaim because the record is without any request to find the facts of which it was predicated by answer, ITo error is apparent from an omission to find facts as to which no finding was requested. Burnap v. Nat. Bank, 96 N. Y. 12b ; Thomson v. Bank of British North Amer., 82 id. 1; Wood v. Lary, 124 id. 83 ; 35 St. Rep. 53 ; West v. Van Tuyl, 2 Silv. Ct. App. 501; 28 St. Rep. 549 ; Lyons v. Cahill, 18 id. 375; Hugg v. Shank, 1 Silv. Sup. Ct. 153; 23 St. Rep. 312. Appellant’s only contention is that the recovery is against the evidence and the weight of evidence. The record, however, discloses abundant evidence in plaintiff’s behalf and to the effect that all the work undertaken by Curran was performed in a good workmanlike manner, and that the materials used were proper and suitable for the purposes for which they were intended, and of the quality contracted for; that in so far as the contract for steam fitting and heating, remained incompleted, it was due either to Gerlach’s omission to have the building in suitable condition to enable Cur-ran to proceed or to deviations from the original specifications, which were sanctioned and directed by Gerlach. There is also evidence from which it appears that the charges for work other than the work included in the contracts for steam heating and fitting, and gas-piping and fitting, were fair and reasonable. Gerlach was credited with an allowance of $322.30 for work, under the steam heating contract as to which performance was prevented bv Gerlach. We think, therefore, that the referee was justified in his conclusion that Curran had substantially and in good faith, completed the several contracts entered into and this was all that was required to entitle him to recover. Johnson v. De Peyster, 50 N. Y. 666; Phillip v. Gallant, 62 id. 256; Woodward v. Fuller, 80 id. 312; Flaherty v. Miner, 123 id. 382; 33 St. Rep. 681. And whether or not the contract has been substantially performed is a question of fact depending upon all the circumstances of the case, to be determined by the trial courtv Nolan v. Whitney, 88 N. Y. 648; Bowery Nat. Bk. v. Mayor, etc., 63 id. 336. True, there was evidence for the defendant Gerlach, tending to establish that the work was negligently and unskilfully done, and that the materials used by Curran in the performance of the work were of poor and inferior quality, by reason of which much of the work had to be done over and the materials used replaced by better. This, however, raised but a conflict of evidence which it was the province of the trial court to determine, and with that determination, in the absence of apparent incredibility or intrinsic improbability of the truth of the evidence adduced for the prevailing party, the appellate court will not interfere. Baird v. Mayor, etc., 96 N. Y. 567 ; Crane v. Baudouine, 55 id. 256. On the trial, counsel for the defendant, Gerlach, moved to be allowed to amend the answer by adding as an item of the alleged damages constituting the counterclaim, rents lost in consequence of defendant Curran’s delay in the performance of the work undertaken by him and the negligent and unskillful performance of the work. This as denied by the referee",’ upon the ground that the damages intended to be claimed were too remote. The ground alleged for the ruling we think, was erroneous. One who has been deprived of the use of a building, or of machinery in consequence of inexcusable delay caused by another who has undertaken to make improvements or repairs, is justly entitled to indemnity for the loss. Such damages are within the reasonable contemplation of the parties. Southerland on Damages, vol. II, § 703 ; Griffin v. Colver et al., 16 N. Y. 489 ; Cassidy v. Le Fevre, 45 id. 562 ; Ruff v. Rinaldo, 55 id. 664; Hexter v. Knox, 63 id. 561. Defendant Grerlach, however, was not entitled to the amendment as of course. The language of the Code of Civ. Pro., § 723 is that the court “ may ’’allow an amendment" at or during the progress of the trial upon such terms as to it shall seem just. The granting of it, therefore, rests in judicial discretion ; and since it does not appear that the referee has determined that defendant Grerlach was deprived of the use of his building owing to any delay caused by Curran, or that the referee was requested to find the fact of such delay, and since the facts that defendant Curran duly performed his several contracts, in so far as he was permitted to perform them, effectually refutes any claim that defendant Grerlach was deprived of the use of his building by delay caused by Curran, and, particularly, since defendant Grerlach must, for reasons already stated, be deemed to have abandoned his attempted counterclaim altogether, the error, if such committed in the denial of the motion for leave to amend the answer cannot be urged to have operated' prejudicially to defendant Grerlach. Mixter v. Mixter, 13 Week. Dig. 360.

The judgment should be affirmed, with costs.

Bookstaver, P. J. and Prior, J., concur.


text:
    Peter Campbell et al., Resp’ts, v. Amalie Coon, App’lt.

      (New York Common Pleas, General Term,

      Filed May 7, 1894.)

    Mechanic’s men—Contbacts out of state.
    The right to a lien, pursuant to chap. 343 of 1885, does not' extend to contracts made and to be performed out of the state.
    Appeal from a judgment for plaintiffs rendered on the report of a referee. Action by sub-contractors against contractor and owner for the foreclosure of an alleged lien under the provisions of the Mechanics’ Lien Law (ch. 342, L. 1885).

      Herbert H. Gibbs, (Robert L. Harrison, of counsel), for app’lt; James J. Allen, for resp’t.
   Bischoff, J.

That plaintiffs did not by means of the filing of their notice claiming it, acquire a lien upon the. premises of the owner, the defendant-appellant, is clear and beyond successful dispute. The right to a lien pursuant to the provisions of the-Mechanic’s Lien Law (ch. 342, L. 1885) does not extend to contracts made to be performed out of this state. Birmingham Iron Foundry v. Glen Cove Starch Mfg. Co., 78 N. Y. 31. The. action was to foreclose an alleged lien under the provisions of the Mechanic’s Lien Law (ch. 342, L. 1885) of this state. It was intended thereby more particularly to secure the application of a balance due from the owner to the contractor towards the payment of an indebtedness from the latter to the sub-contractors who had supplied certain materials which were used in the construction of the building. The contractor was a corporation organized under the laws of New Jersey, hence, a resident of that state. Plimpton v. Bigelow, 93 N. Y. 592. Plaintiffs, also, were residents of New Jersey and their contract to supply the material was made there. By the terms of the contract the materials were to be delivered in Hoboken, New Jersey, and in the city of New York. No place of payment by the contractor was, however, specified. In legal intendment, therefore, the state wherein the contract was made, and the contracting parties severally resided, was the place contemplated by the parties for the purposes of such payment. Perry v. Erie Transfer Co., 28 Abb. N. C. 430; 46 St. Rep. 185. The lien provided for by the Mechanic’s Lien Law (ch. 342, L. 1885 (is a statutory security, in effect the same as a mortgage, and was known to the common law. Davis v. Alvord, 94 U. S. 545 ; Freeman v. Cram, 3 N. Y. 305 ; Benton v. Wickwire. 54 id. 226 ; Mushitt v. Silverman, 50 id. 360. It is a right, not a remedy, Atkins v. Little, 17 Minn. 342 ; and the statute which confers it has no extra territorial force. Birmingham Iron Foundry v. Glen Cove Starch Mfg. Co. supra. We appeal to the lex fori for the remedy by which to enforce an alleged right, but the lex loci contractus, or lex solutionis must determine whether, or not, the right exists. Contracts are presumed to have been made with reference to the lex loci contractus and the lex solutionis ; never with reference to the laws élsewhere. Accordingly, it cannot be successfully contended that by means of a contract made and to be performed in New Jersey plaintiffs became entitled to a right or security in New York, the quality of which is wholly derived from the statute law of the last mentioned state and which is only there enforceable. The judgment should be reversed as to the defendant-appellant, and the complaint as to her dismissed, with the costs of this action and of this appeal.

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


author: Bischoff, J

text:
    Nina H. Dearing, Resp’t, v. Aylma Y. Pearson, App’lt.

      (New York Common Pleas, General Term,

      Filed May 7, 1894.)

    1. Appeal—Direction op verdict.
    In the absence oí an exception to the denial of a motion to dismiss the complaint or to direct a verdict, it cannot be urged on appeal that the evidence was insufficient to warrant the submission of the case to the jury.
    2. Same—New trial.
    Exception to denial of motion to set aside verdict and for new trial is not re viewable on appeal.
    3. Evidence—Secondary.
    Where the destruction of a letter is consistent with honest motives and done under a misapprehension concerning the importance of its preservation for future use, parol evidence is admissible to show its contents.

      4. Same.
    In such case, the appellate court will reverse the trial justice’s determination only when there is no evidence whatever, or no sufficient evidence, to support it.
    5. Same—Irrelevant.
    It is not error to exclude evidence inconsistent with the issue formed by the pleadings.
    6. Appeal—Curing error.
    An offer to admit excluded evidence, which is refused by the excepting party, will cure any error in its rejection, in the absence of possibility of harm or disadvantage.

      7. Same—Bequest to charge.
    A request to charge, winch involves a proposition which is not only irrelevant'but also inconsistent with the defense, is properly refused.
    8. Contract—Breach—Reinstatement.
    After the termination of a contract by a party’s breach thereof-, it cannot be>reinstated and the other party deprived of a cause of action, without mutual consent. .
    9. Same—Damages.
    The rule as to the subsequent offer of employment by the employer in order to reduce the damages, stated
    Appeal from a judgment of the general term of the city court of New York which affirmed a judgment for plaintiff, upon a verdict in her favor. Action to recover damages for plaintiff’s wrongful discharge from defendant’s employment under a contract for theatrical services.
    Smith, Bowman cb Glose, (Artemas B. Smith, of counsel), for app’lt; David Leventritl, for resp’t.

       Affirming 56 St. Rep. 901.

   Bischoff, J

The judgment of affirmance of the court below is conclusive upon us as to the weight of the evidence. Rowe v. Comley, 11 Daly , 318 ; Smith v. Pryor, 16 id. 169 ; 30 St. Rep. 553 ; Arnstein v. Haulenbeek, 16 Daly, 382; 34 St. Rep. 297; Paige v. Ghedsey, 4 Misc. R. 183 ; 53 St. Rep. 190 ; Meyers v. Cohn, 4 Misc. R 185 ; 53 St. Rep. 223. Defendant’s omission to move the dismissal of the complaint, or that a verdict be directed in his favor, was a concession that the evidence was sufficient to warrant its submission to the jury, Barrett v. Third Ave. R. Co., 45 N. Y. 628 ; and without any exception to the denial of either of such motions the contrary may not be urged on this appeal. Schwinger v. Raymond, 105 N. Y. 648; 7 St. Rep. 544; Smith v. Pryor, 16 Daly, 169 ; 30 St. Rep. 553 The exception taken to the denial of defendant’s motion to set aside the verdict, and for a new trial is not one which was taken upon, but after the trial, Code Civ. Pro. §§ 992, 995, and is therefore not reviewable on appeal. Matthews v. Meyberg, 63 N. Y. 656; Boos v. World Mut. Ins. Co., 64 id. 236 ; Grier v. Hazard, 39 St. Rep. 74; Carroll v. O’Shea, 2 Misc. R. 437; 51 St. Rep. 579 ; Meyers v. Cohn, 4 Misc. R. 185 ; 53 St. Rep. 223. There remain to be noticed only the exceptions which were taken to the trial justice’s rulings on the admission and exclusion of evidence and to his refusals to charge. The first exception was taken to the admission of plaintiff’s testimony concerning the contents of a letter received by her .from the defendant. This letter has a material bearing upon the issues litigated because it tended to corroborate plaintiff’s claim that her engagement was for the “ seasonPlaintiff testified that she was unable to produce the letter because she had destroyed it, and defendant objected to the admission of parol evidence of its contents, on the ground that the evidence was incompetent because it conceded that the destruction of the letter was the result of plaintiff’s voluntary and deliberate act A due consideration, however, of all the circumstances which appeared from the plaintiff’s testimony to have attended the destruction of the letter disclosed that, though the destruction was voluntary and intentional, it was, notwithstanding, within the province of the trial justice to admit the testimony objected to. Every one is chargeable with the knowledge that the law requires of him the production of the best evidence, which in the case of a writing is the instrument itself. If he, therefore, deliberately, destroys the written instrument and attempts to supply it by parol evidence, which is of inferior degree, it is, in the absence of proof that the written instrument was destroyed by accident, surprise or mistake, a conclusive presumption that it was in furtherance of a corrupt design thus to secure some unfair advantage over his adversary. Under such circumstances, parol evidence of the contents of q. written instrument cannot be received. It is, however, at all times proper to inquire into the motives which prompted the destruction of the written instrument, and if, from the evidence adduced, the motives appear to have been innocent of corrupt design, and the party seeking to avail himself of parol evidence of the contents of a written instrument destroyed by him did not, at the time of such destruction, appreciate the importance of the instrument, or was under some erroneous impression concerning its effect under circumstances which dispel suspicions of corrupt intent or design, then parol evidence of the contents is not only competent but it is error to exclude it, Steele v. Lord, 70 N. Y. 280 ; Bagley v. Mc Mickle, 9 Cal. 430, 446. Whether or not the destruction of the instrument was prompted by motives innocent of corrupt intent or, design, is a preliminary question of fact which must be determined by the trial justice before parol evidence of the contents of the instrument is receivable, Steele v. Lord, supra, and with his determination upon conflicting evidence, or upon conflicting inferences' from the evidence, the appellate court will not interfere. It is the province of the appellate court to reverse the trial justice’s determination only when there is no evidence whatever or no sufficient evidence to support the latter’s determination of the facts. Berg v. Carroll, 40 St. Rep. 811; Jackson v. Frier, 16 Johns. 193; Graham v. Chrystal, 2 Abb. Ct. App. Dec. 264 ; Nicholson v. Connor, 8 Daly, 215 ; Sheridan v. New York, 68 N. Y. 30; Gildersleeve v. Landon, 73 id. 609. In the case at bar it appeared from plaintiff’s testimony that the letter was destroyed with a lot of others deemed of no particular importance, and preserved in plaintiff’s place of abode, on the eve of her departure for Montreal in defendant’s employ, and at a time when no controversy had arisen concerning the terms of her employment, or could reasonably have been apprehended, the employment having just begun. We are of opinion that, upon this evidence, the trial justice cannot be said to have erred in his conclusion that the destruction of the letter was consistent with honest motives, and done under an misapprehension concerning the importance of its preservation for future use. The trial justice properly excluded the following question by defendant’s counsel, on plaintiff’s cross-examination, “ But, as I understand, you were acting out this two weeks’ notice, which it is the custom to give in such cases, were you not ? No evidence has been adduced, at the time, that there was any custom in the theatrical profession pursuant to which contracts entered into between artists and managers were terminable by either upon two weeks’ notice to the other. Neither had defendant pleaded any rescission of the contract as a defense to the action. On the contrary, the answer explicitly admitted that plaintiff was discharged, an admission which was plainly inconsistent with a rescission of the contract in furtherance of its provisons. The issues tendered by the pleadings, inclusive of the amendment to the answer, which was allowed on the trial, limited the inquiries, to the terms of the contract of employment and whether or not plaintiff was rightfully discharged. Assuming, therefore, that, pursuant to the provisions of the contract, or by custom, defendant, had the right to rescind or terminate the contract upon notice to plaintiff, it was, notwithstanding, incompetent to him, in the absence of the excuse of that right -pleaded as a defense, to avail himself thereof either to defeat plaintiff’s recovery altogether or to affect the measure of her recovery. This precise question was-lately determined by this court in Watson v. Russell, 58 St. Rep. 373, and it is unnecessary, therefore, to further discuss it here. Upon the grounds stated in the opinion last referred to the evidence, here sought to be elicited, that the contract was rescinded, was plainly irrelevant. What has been said also renders it futile to inquire whether or not the defendant should be deemed to have abandoned the exception which was taken by him to the exclusion of the question last above referred to because his counsel refused to avail himself of plaintiff’s offer, pending her cross-examination, to answer the question without objection. However, it may be said that, since it does not appear that defendant was in any sense prejudiced by the temporary exclusion of the question and that he would not have derived the same advantage from the subsequent admission of the evidence excluded, his refusal to avail himself of the opportunity accorded to correct it should estop him from thereafter asserting the the error, if any. The institution of judicial trial is designed to accord to the litigants those rights to which they shall, by proper evidence adduced by them, show themselves entitled. If; therefore, a party refuses to adduce evidence deemed by him to be material, when the opportunity is accorded him, he should not thereafter be heard to complain if it is not considered. The office of an exception is to point out wherein the excepting party claims to have been prejudiced by the ruling of the trial court, but it is the function of the appellate court only to correct such errors as have, or may have, prejudiced him. Interest reipublicae ut sit finis litium, and it is inconceivable how prejudice can result from a ruling which is immediately after offered to be corrected if the excepting party will consent and before he has been induced to waive any advantage which he would have secured from a ruling in his favor. Furst v. Second Ave. R. R. Co., 72 N. Y. 542, 546, relied upon by appellant’s counsel, is not at variance with the views expressed. There the error consisted of the admission of improper evidence by which the jury might have been influenced and it was held that because the trial court omitted to instruct the jury to disregard the evidence admitted, the error of its admission was not obviated by a direction that it be stricken out on motion of the party by whom it was introduced. Apropos of such cases, the court of appeals has very lately observed that, if the trial court erroneously receives objectionable and damaging evidence which it subsequently strikes out and directs the jury to disregard, it is uniformly held that “ the vice is eliminated and that, theoretically, at least, the erroneous evidence found no lodgment in the minds of the jury.” Chesebrough v. Conover, 140 N. Y. 382, 389 ; 55 St. Rep. 728. As abundant, at least, are the reasons for regarding as harmless the erroneous exclusion of proffered evidence, when opportunity for its admission is thereafter accorded, which is refused, and it does not appear that the excepting party has incurred even the possibility of disadvantage from the ruling excepted to. Flanagan v. Mitchell, 16 Daly, 223 ; 32 St. Rep. 303. Accompanying this appeal there was a further appeal from an order of the general term of the court below which affirmed an order of the trial justice denying appellant’s motion for disallowance of respondent’s amendment on the settlement of the case on appeal from the judgment. The case, as settled and certified to us, contains a request by defendant’s counsel to charge as follows: “ I ask the court to clwge, that if the jury believe the custom as to two weeks notice existed, they must give only salary for the two days short of two weeks.” This the court declined to charge. Then it appears, from the case, that the court proceeded to charge that “ in that event, that would be the extent and limit of the damages recoverable by her in this action.” Here follows an exception by defendant’s counsel. Defendant’s objection to the case as settled was to the insertion of the matter purporting to have been charged. By oral stipulation of counsel, in open court, at the time of the argument, however, we are authorized on this appeal to consider the matter objected to as eliminated from the case, so that the appellant’s exception shall appear to have been taken to the refusal to charge as requested. With the case so amended the exception is, nevertheless, wholly without merit. The request involved a proposition which was not only irrelevant but also inconsistent with the defense. It was admitted by the answer that plaintiff was discharged from defendant’s employ, and, on the trial, defendant sought to justify the discharge on the ground of incompetency. Ho recission of the contract of employment by notice, whether the right to do so arose from custom or agreement, was pleaded as a defense. Hence, as herein already stated, the right to rescind was not available to defendant for any purpose. It appeared in evidence that subsequent' to her discharge in November, 1892, plaintiff visited her sister in Savannah, Georgia, and there remained until April, 1893. Her contract oE employment with defendant was entered into in the city of New York. Upon these facts defendant’s counsel requested the court to charge the jury, as proposition of law, that defendant had a right to recall plaintiff’s discharge; to insist upon a reinstatement of the contract of employment; that plaintiff was bound to remain in the city of New York to await the recall of her discharge; and that she was not entitled to recover for the period of her absence from the city of New York. It'is apparent that these several propositions' were predicated of Polk v. Daly, 4 Daly, 411, and like cases, in all of which the plaintiff was held entitled to recover wages upon the theory of construction service, consistent with which it was incumbent upon i the servant to.show his readiness to comply with his master’s orders respecting the employment; a theory, however, which the case of Howard v. Daly, 61 N. Y. 362 has authoritatively settled, not to be the law of this state. But, though we assume the views of appellant’s counsel, respecting the law, to be correct, the propositions included in the requests refused are irrelevent to the facts of the case at bar for the defendant has, by his answer admitted that he discharged the plaintiff from his employ and that since the discharge he has refused to allow her to continue in his employ. If it be contended that the several requests are intended only to affect the measure of plaintiff’s recovery the propositions which they imply are equally falacious. Plaintiff’s damages were prima facie the amount remaining unearned under the contract of employment at the time of the discharge Howard v. Daly, supra,. It was incumbent upon the defendant to show that,- with reasonable diligence on her part, plaintiff could have found employment of the same kind and thus ' reduced the damages otherwise recoverable of him (id.). That she could have done so will not be assumed. Sutherland on Damages, vol. II, § 693. After the termination of the contract by defendant’s breach, it could not be reinstated, and plaintiff deprived of her cause of action, except by mutual consent. Defendant had a locus poenitentiae, but only to the extent of enabling him to reduce plaintiff’s damages by providing her with employment of the same kind, Bigelow v. Amer. Forcite Powder Mfg. Co., 39 Hun, 599 ; Levin v. Standard Fashion Co., 34 St. Rep. 299, which plaintiff would have been bound to accept unless, in the meantime, she had entered upon another’s employment or her refusal to re-enter defendant’s employment was justifiable upon substantial grounds, under pain of suffering a diminution of her recovery to the extent of the earnings which she would have received from the »employment offered her. It nowhere appears in evidence that defendant did offer to provide plaintiff with employment subsequent to her discharge or that he desired to do so, and defendant’s admission by answer irrefragably precludes the claim that he did or might have done so. Manifestly, therefore, plaintiff’s absence from the place of original employment, without evidence tending to show that'defendant was thereby deprived of the opportunity of reducing the damages for which his breach of contract had rendered him liable, could not have the effect whicli the requests to charge implied. The judgment should be affirmed, with costs.

Bookstaver, P. J., concurs.


text:
    Nina H. Dearing, Resp’t, v. Aylma Y. Pearson, App’lt.

      (New York Common Pleas, General Term,

      Filed May 7, 1894.)

      1. Appeal—Duty of appellant.
    It is incumbent upon the appellant, in every instance, to show the error complained of affirmatively.
    3. Same—Effect of affirmance.
    Upon an appeal from the city court, an order of affirmance is conclusive upon the common pleas as to the preponderating effect of the evidence.
    Appeal from an order of the general term of the city court of New York which affirmed an order of the trial justice denying defendant’s motion for resettlement of the case on appeal from the judgment herein. Action to recover damages for plaintiff’s wrongful discharge from defendant’s employment under a contract for theatrical services.
    Smith, Bowman & Close (Artemas B. Smith, of counsel), for app’lt; David Leventritt, for resp’t.

       Affirming 55 St. Rep. 774.

   Bischoff, J.

The action was to recover damages for plaintiff’s wrongful discharge from defendant’s employment under a contract for theatrical services and resulted in a verdict and judgment for plaintiff. Feeling aggrieved, defendant undertook to- appeal to the general term of the court and towards that end made and served his proposed case on appeal. To the proposed case plaintiff caused a proposed amendment to be served, which on settlement of the case was allowed. Thereafter defendant moved to have the case resettled and the amendment disallowed which was denied, and from the order denying his motion, defendant appealed to the general term of the court below where it was affirmed. From the order of affirmance this appeal is .taken. On the trial there was some contention on defendant’s part concerning the service of an alleged notice of defendant’s election to terminate the contract of employment. The proposed case on appeal from the judgment contained a request by defendant’s counsel to charge as follows: “I ask the court to charge that if the jury believe the custom as to two weeks’ notice existed, they must give only salary for the two days short of the two weeks,” to which the trial justice responded, “Beclined.” From the proposed case it then appeared that the trial justice proceeded to charge, li But I charge that in that event, that would be the extent of the damages recoverable b.v her in this action,’1 and then followed defendant’s exception. The purport of defendant’s motion for re-settlement of the proposed case on appeal was to have the matter appearing as charged expunged so that defendant’s exception would appear as having been taken to the refusal to charge. On the motion for resettlement of the case it appeared for defendant, from the stenographer’s minutes and the affidavits of Messrs. Bowman and Close, that the matter purporting to have been charged was in fact not charged, while from the affidavits of plaintiff’s counsel, Messrs. George M. Leventritt, Levy and Helling, it appeared that the matter was charged, pending a colloquy between the trial justice and counsel for the respective parties, if not in the exact language of the case, in substance. Upon this conflict of evidence we are obviously unable to say that the trial justice erred in his denial of defendant’s motion, and must assume that, assisted by his own recollection, the justice determined plaintiff’s contention to accord with the actual occurrences. An appellate court will never presume that the court from which the appeal is taken erred, and it is incumbent therefore upon the appellant in every instance to show the error complained of affirmatively. It was the province of the general term of the court below to correct any error appearing from the preponderating effect of the evidence, but the order of affirmance is conclusive upon us in that regard. At any rate, the error, if any, of the denial of defendant’s motion was rendered harmless by the stipulation of counsel that the appeal from the judgment be heard and determined without reference to the matter sought to be expunged from the case, and that the case on appeal from the judgment be for that purpose deemed amended so as to conform to defendant’s contention on the motion for resettlement. Our opinion in the disposition of the appeal from the judgment is evidence that the stipulation was acted upon on our part. Order affirmed, but in view of the stipulation referred to, without costs to either party as against the other.

Bookstayer, P. J.—In as far as the appeal from the order is concerned, I concur.


text:
    Abey Gundlin, App’lt, v. The Hamburg American Packet Company, Resp’t.

      (New York Common Pleas, General Term,

      Filed May 7, 1894.)

    1. Trial—Motion to strike out.
    The court may, in its discretion, deny a motion to strike out the witness’ answer to a question, to which no objection was duly taken.
    2. Same.
    If the answer is in part irresponsive, the motion should be limited to such portion.
    3. Same—Objection.
    An exception is unavailing where no ground of objection is stated.
    4. Same—Direction of verdict.
    In the absence of an exception to the denial of a request to direct a verdict, the court will not inquire whether there was sufficient evidence to sustain it, or whether it was without, or contrary to, the evidence.
    5. Appeal—Order for new trial.
    An exception to the denial of a motion to set aside the verdict and for a new trial, is not available on appeal from the city court.

      6. Same—Charge.
    A general exception to the charge, objectionable in some respects but unobjectionable in others, does not present error.
    7. Contract—Breach.
    A contract is broken by failure to perform it at the place where, by its terms, it is to be performed, and the cause of action arises when and where the breach occurs.
    8. Jurisdiction—Non-resedence,
    To authorize the dismissal of an action under the provisions of § 1780 of the Code, for want of jurisdiction because of the non-residence of the plaintiff, the fact of his non-residence must be first proved and determined.
    9. Judgment—Estoppel.
    A general verdict and judgment thereon, upon an issue in abatement joined with an issue in bar, estops from again litigating the merits of the same issue in bar.
    10. Same.
    To avoid such effect, the party should ask the court to direct a special finding by the jury on the issue in abatement.
    Appeal from a judgment of the general term of the city court of New York which affirmed a judgment for defendant on a verdict in its favor, and an order denying plaintiff’s motion on the minutes for a new trial. Action by a passenger against a common carrier by water for loss of baggage. Defendant was conceded to be a foreign corporation, and plaintiff claimed to be a resident of the state of New York at the time of the commencement of this action.

      Abraham H. Sarashon, for app’lt; Wheeler & Cortis (Everett P. Wheeler, of counsel), for resp’t.

       Affirming 55 St. Rep. 775.

   Bischoff, J.

No error appears from the record by due exception for which, we may reverse the judgment on the merits. Several exceptions appear to rulings on the admission of evidence for defendant. The first was taken to the denial of a motion by plaintiff’s counsel to strike out the witness’ answer to a question not objected to. It was within the discretion of the court to deny the motion, Platner v. Platner, 78 N. Y. 90; and assuming that the answer was in part irresponsive to the question the motion to strike out should have been limited to that part. McCabe v. Brayton, 38 N. Y. 196; People v. Beach, 87 N. Y. 508, 512; Tuomey v. O'Reilly, Skelly & Fogarty Co., 3 Misc. R. 302, 306; 52 St. Rep. 119. In the case of the remaining exception the ground of objection was not stated, Cruikshank v. Gordon, 118 N. Y. 178; 28 St. Rep. 784; Stouter v. Man. Railway Co., 127 N. Y. 661; 38 St. Rep. 162. The judgment of affirmance of thé court below is conclusive upon us representing the weight of the evidence. Arnstein v. Haulenbeck, 16 Daly, 382 ; 34 St. Rep. 297; Smith v. Pryor, 16 Daly, 169; 30 St. Rep. 553; Rowe v. Comley, 11 Daly, 318. Plaintiff must be deemed to have conceded that there was a sufficient conflict of evidence to require the jury’s determination •of the facts because he did not ask to have a verdict directed in Ms favor, Barrett v. Third Ave. R. R. Co., 45 N. Y. 628; Paige v. Chedsey, 4 Misc. R. 183; 53 St. Rep. 190; Meyers v. Cohn, 4 Misc. R. 185; 53 St. Rep. 223 ; and without an exception to the denial of such a request it is not within our province to inquire whether there was sufficient evidence to sustain the verdict, or whether the verdict was without, or contrary to the evidence, Schwinger v. Raymond et al., 105 N. Y. 648 ; 7 St. Rep. 544; Smith v. Pryor, 16 Daly, 169 ; 30 St. Rep. 553. On appeal to this court from the city court of New York an order denying a. motion for a new trial brings up for review such questions of law only as are presented by due exception taken upon the trial. (Schwinger v. Raymond et al., 105 N. Y. 648; 7 St. Rep. 544, and an exception to the denial of a motion to set the verdict aside and for a new trial, is not one taken upon, but after the trial, Code Civ. Pro. §§ 992, 995, 996. Such an exception cannot therefore avail on appeal, Matthews v. Meyberg, 63 N. Y. 656; Boos v. World Mut. L. Ins. Co., 64 N. Y. 236 ; Grier v. Hazard, 39 St. Rep. 74; Carroll v. O'Shea, 2 Misc. R. 437; 51 St. Rep. 579; Meyers v. Cohn, 4 Misc. R. 185 ; 53 St. Rep. 223. One other exception remains, to the charge, which we proceed to notice specially. The action was brought to recover damages for the loss of baggage belonging to a passenger, which defendant, a foreign corporation, was alleged to have received on board its steamship “Polynesia” for transportation from Stettin, Germany, and which it failed to deliver on arrival of the steamship at its. place of destination in this country. On the trial it was consented on defendant’s "behalf that plaintiff was not, when the action was commenced, a resident of the state of New York, and the fact appeared by fair inference from plaintiff's deposition taken under a commission. Counsel for defendant therefore urged that the court was without jurisdiction to determine the rights of the litigants. Plaintiff’s counsel thereupon, as a witness in his client’s, behalf, testified to the fact of the latter’s residence in the city of New York at the time of the commencement of the action. On the question of plaintiff’s non residence, as well as that the-baggage was lost through defendant’s neglect, there ensued a conflict of evidence and upon the submission of the case the trial justice charged the jury as follows; “It is for you to determine whether the plaintiff in this action was a non-resident of this city when this action was commenced, February 15th, 1892, as it seems to be. If you find he was not such a resident your verdict will be for defendant. Should you conclude he was a resident, your verdict will be in favor of the plaintiff, and that will bring you to the other disputed questions of fact in the case.” To this charge plaintiff’s counsel excepted generally, to wit. to all that part of the charge relating to plaintiff’s evidence. The vice of the exception is apparent. It is incumbent upon counsel for the excepting party to point out the specific party of the charge to which he intends to object so that the error, if any, may be obviated. If therefore, a charge, excepted to generally, is objectionable in some respects, but unobjectionable in others, the exception does not present error. Stone v. West. Trans. Co., 38 N. Y. 240; Jones v. Osgood, 6 N. Y. 233 ; Caldwell v. Murphy, 11 N. Y. 416 ; Walsh v. Kelly, 40 N. Y. 556; Groat v. Gile, 51 N. Y. 431, 442 ; Hunt v. Maybee, 7 N. Y. 266; Haggart v. Morgan, 5 N. Y. 122 ; Oldfield v. N. Y. & Harlem R. R. Co., 14 N. Y. 310, 315 ; McGinley v. U. S. Life Ins. Co., 77 N. Y. 495. Upon the conflict of evidence it was the province of the jury to determine whether, or not, plaintiff was a non-resident at the time of the commencement of the action; and having determined that plaintiff was a non-resident and that the loss of his baggage was occasioned through defendant’s fault, it was the jury’s duty to return a verdict for plaintiff. In these last mentioned respects therefore the charge of the trial justice was not justly open to adverse criticism.- Hence, for the reason already stated, the exception taken is not available to show that the justice erred because the charge in effect determined that the cause of action did not arise within this state, as plaintiff’s counsel now contend it did. In this connection it may not be amiss to call counsel’s attention to a grievous error on his part. We observe that he refers to “Exhibit A” which is in the German language and attached to plaintiff’s deposition, and of which there appears no translation in the record as the passage contract between plaintiff and defendant by the terms of which, it is claimed, defendant undertook to convey plaintiff, and to transport his baggage, from Stettin to New York. This instrument, however, does not purport to have been made on defendant’s behalf and on its face appears to be no more than a contract by one R Hunger with plaintiff wherein the former is described to be an Emigrant Forwarding Agent, accredited as such by the local authorities at Stettin, and whereby he undertook to secure plaintiff’s conveyance, and the transportation of the latter’s baggage from Stettin to New York by the steamship “Polynesia.” Hunger’s relation to defendant is nowhere defined in the instrument. Heither does the record elsewhere inform us in that respect. For aught which appears the contract involves only a personal enterprise on Hunger’s part. Ho contract on plaintiff’s part with defendant appears to have been made in this state and the fact that plaintiff embarked upon defendant’s steamship at Stettin will at most sustain an inference that defendant’s contract with plaintiff for conveyance to this country was made at Stettin. From unchallenged evidence it appears that the destination of the steamship was Hoboken, New Jersey, and from that fact we can only infer that the place of destination was the place intended for delivery of the baggage which defendant had assumed to transport. In the abstract we agree with plaintiff’s counsel that a contract is broken by failure to perform it at the place where by its terms the contract was to be performed, and thak the cause of action arises when and where the breach occurs. Perry v. Erie Transfer Co., 28 Abb. N. C. 430, and note; 46 St. Rep. 185; Hibernia Nat. Bank, v. Lacombe, 84 N. Y. 367; Burckle v. Eckhart et al., 3 N. Y. 132; Toronto Gen. Trust Co. v. The Chicago, B. & Q. R. R. Co., 32 Hun, 190; Bank of Commerce v. Rutland & W. R. R. Co., 10 How. Pr. 1; Pomeroy’s Remedies & Remedial Rights, §§ 452, 454, 518, 520. Upon the evidence, however, these propositions lead to the conclusion that the cause of action sued upon arose in New Jersey.

Counsel for appellant, however, further assails the judgment appealed from upon the ground that in so far as the charge directed the jury to find for the defendant, if they believed plaintiff to have been a non-resident at the time of the commencement of the action, it involved an assumption of excessive jurisdiction on the part of the trial court, because it was incumbent upon the'court, when'the fact of plaintiff’s non-residence was ascertained, to decline to adjudge the rights of the litigants, and to dismiss the action ; and that, therefore, the verdict for defendant, as well as the judgment rendered thereon, are coram, non judice, and void. ’ It is conceded that the verdict and judgment would have the effect claimed if the fact of plaintiff’s non-residence appeared affirmatively from the record. Section 1780 of the Code of Civil Procedure inhibits the courts of this state from maintaining an action by a non-resident, or foreign corporation, against a foreign corporation, except when the action is brought to recover damages for the breach of a contract made within this state, or relates to property within this state when the contract was made, or is to recover real property or' a chattel within this state, or the cause of action arose therein. These inhibitory provisions operate to limit the jurisdiction of the courts with respect to the subject matter of the litigation, and when, therefore, in an action against a foreign corporation the status of the plaintiff as a foreign corporation or nonresident, is conceded or otherwise ascertained, and the case does not present one of the exceptions above mentioned, the courts of this state cannot proceed to adjudge the rights of the litigants, but must dismiss the action. Perry v. Erie Transfer Co., 28 Abb. N. C. 430; 46 St. Rep. 185; Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315; 20 St. Rep. 741; Davidsburgh v. Knickerbocker L. Ins. Co., 90 N. Y. 526. As jurisdiction of the subject matter cannot be conferred by consent of the litigants so it cannot be conferred by their omission to object to the exercise of jurisdiction ; nor are the parties estopped from disputing the validity of the judgment for want of jurisdiction of the subject matter of the action at any time. Wilmore v. Flack et al., 96 N. Y. 512, 519; McMahon v. Rauhr, 47 N. Y. 67. No exception is required, and the objection that the judgment was in excess of the power of the court to render it is available on appeal, though made for the first time. Cook v. Whipple et al., 55 N. Y. 150, 157; Fiester v. Shepard, 92 Id. 221; Matter of Larson, 96 Id. 381.

Every intendment, however, is in favor'of the validity of a judgment, if regular on its face, and the burden of establishing a want of jurisdiction is upon him who asserts it, Ferguson v. Crawford, 86 N. Y. 610; and if the court which rendered.the judgment had jurisdiction generally of actions involving & like subject matter the presumption is that it had jurisdiction in the particular case unless the facts which limit the exercise of jurisdiction in prescribed cases affirmatively appear. “If the petitioner states such a.case in his petition-that, on demurrer, the court would render judgment in his favor, it is an undoubted ¿ase of jurisdiction.” U. S. v. Arredondo, 6 Peters, 709; 85 U. S. 959; Davis v. Packard, 6 Wend., 327, 332; People ex rel. Tweed v. Liscomb, 60 N. Y. 559. The case at bar is to be distinguished from cases where the existence of certain facts must appear to sustain jurisdiction. Fischer v. Langbein, 103 N. Y. 84; 7 St. Rep. 862. Here the existence of a certain fact, non-residence of the plaintiff, is required to oust the court of jurisdiction. The existence of such a fact will not be presumed. To authorize a dismissal of the action, therefore, under the provisions of § 1780 of the Code of Civil Procedure, for want of jurisdiction because of the non-residence of the plaintiff, the fact of his non-residence must be first proved and determined. Leslie v. Lorillard, 18 Wk. Dig., 288; Gurney v. Grand Trunk R'way Co. of Canada, 37 St. Rep. 557. Ho such determination was had in the case under consideration. How then may we say that the court below was without jurisdiction because plaintiff was a non-resident of this state when the action was commenced ? It is the province of thq trial court, not of the appellate court, to determine the facts upon a conflict of evidence, Purchase v. Matteson, 25 N. Y. 211; Whitehead v. Kennedy, 69 Id. 462; Cuff v. Dorland, 27 Id. 560; Riley v. Black, 1 Misc. R. 292; 48 St. Rep. 759;. Coe v. Raymond, 89 N. Y. 612; and if jurisdiction be dependent upon the existence or non-existence of certain facts the trial court has power to determine the facts upon the evidence. Roderigas v. East River Sav. Inst., 63 N. Y. 460, 464. Upon a jury trial, unless the contrary appears, it muse be assumed that the jury found all the essential facts of which there was sufficiept evidence consistently with the verdict. Sutter v. Vanderveer, 123 N. Y. 652; 3 Silvernail Ct. App. 130; 34 St. Rep. 211. Thus upon the issue respecting the fact of plaintiff’s non-residence the record present an affirmative finding to the effect that plaintiff was not a non-resident and thereby the jurisdiction of the trial court to render judgment on the merits for defendant is sustained. We do not fail to notice the criticism that the manner in which the issues were submitted to the jury, and the determination of those issues by a general verdict, render it impossible to say that the jury did not find for defendant because of the "fact of plaintiff’s non-residence at the time of the commencement of the action; and that the verdict for defendant, and judgment in its favor thereon, if permitted to stand, may operate to preclude plaintiff from again seeking redress for the same cause of action in the proper forum. Counsel’s apprehensions concerning the conclusiveness of the verdict and judgment are well grounded. A general verdict, and judgment thereon, upon an issue in abatement, joined with an issue in bar, estops the party against whom the verdict was found, and the judgment was rendered, from again litigating the merits of the same issue in bar. Sheldon et al. v. Edwards, 35 N. Y. 279. At common law issues in abatement were required to be tried and determined before the trial of issues in bar. Under the Code of Civil Procedure however defenses in abatement may be joined with defenses in bar, and both must be determined together at one and the same trial. Pomeroy’s Eemedies & Eemedial Eights, § 721. If counsel desired to avoid the effect of a general verdict for defendant upon plaintiff’s rights he should have asked the trial court to direct a special finding by the jury on the issue respecting the fact of plaintiff’s non-residence. If such a direction had been refused an exception thereto would have presented error which it would have been our province to correct. If it had been granted, and the jury had found for defendant on the issue in abaiement, the court would have been enabled to render the.proper judgmentfor dismissal of the action for want of jurisdiction, and thus plaintiff would not have been precluded from again litigating the merits of his cause of action. Sweet v. Tuttle, 14 N. Y. 465; Gardner v. Clark, 21 id. 399; Coe v. Raymond, 89 id. 612; Pomeroy’s Remedies & Remedial Rights, § 721. As the record is presented to us we must, as already stated assume that the jury found for defendant on the merits, and for plaintiff that he was a resident as he contended. The judgment of the general and trial terms of the court below must be affirmed, with costs.

Daly, C. J., and Pryor, J., concur.


author: Per Curiam. Daly, C. J.

text:
    In the Matter of the Accounting of Joseph Pool, as Assignee of Hiram Pool.

      (New York Common Pleas, General Term,

      Filed May 7, 1894.)

    1. Evidence—Admissions.
    The admitted written declarations of a party make evidence of the strongest kind and, unexplained, are conclusive against him.
    2. Costs—Assignee fob cbeditobs.
    The expense of a litigation over accounts/in which the assignee has been unsuccessful with regard to every material issue, should not be charged ; against the estate.
    Appeal from a decree confirming the report of a referee on the accounting of an assignee.

      James W. Hawes, for app’lt assignee; Taylor & Parker {Alfred Parker, of counsel), for Hiram Pool, assignor, and Clara L. Pool, creditor, resp’ts.
   Per Curiam.

After a critical examination of the evidence in the record and the voluminous briefs of counsel, we are satisfied upon the argument of the learned chief judge, with the disposition of the case at special term; and we are content, in his opinion, to affirm the judgment. Judgment affirmed with costs.

The opinion of the special term is as follows:

Daly, C. J.

The matters upon which I reserved my decision were (1) As to the sum of $3,028.50 derived by the assignee from the Ford account, which he claims as his own property, but with which he has been charged by the referee as part of-tbe assigned estate. , (2) As to the sum of $4,197.25, the value of three bonds of the Columbus, Hocking Valley and Toledo Railroad of the par value of $3,000, and the coupons thereof and interest, which bonds the referee finds that the assignee had in his possession at the time of the assignment as the property of the assignor and for. which he has failed to accouht (3) The sum of $3,167.95, the value of two bonds of the Mutual Union Telegraph Company with coupons and interest with which the referee has charged the assignee for the same reasons. (4) The sum of $3,000, which the referee has disallowed on the ground that it was an advance of money to the assignor personally and not a payment to his wife, Clara L. Pool, a preferred creditor. As to the Ford account: Just prior to the assignment the assignor had an account with one Ford, his broker, in an operation in Brie Second bonds. Ford held as collateral to the account certain bonds and $1,285 in cash. Two days before the assignment, the assignor transferred this account to the assignee. Was this transfer a gift as the assignee claims ? At the time of the transfer there was a profit in the account which the assignor could have realized if it were closed out then. When it was subsequently closed out, there was realized from it over $3,000, which the assignor took and kept and now claims belongs to him. There is the testimony of the two brothers, the assignor and the assignee, as to the object of the transfer and if it were merely oath against oath, I should not think the referee justified in charging the assignee with this money. But the testimony of the assignor is supported in the first place by the probability of the case, for he certainly not in a position at the time to make a gift of any of the assets upon which he could expect to realize then or thereafter, and in the next place, the testimony of the assignee is inconsistent and unreliable. At one time he denies recollection of the transfer of the account; at another time, claims that he had turned the surplus over to his brother; at another time, that he had credited him with the amount; and finally claims another absolute transfer. Under these circumstances, it is not surprising that the referee has charged him with the whole profit which it is undisputed he received upon this account and for which he paid no consideration to his brother. As to the Hocking Talley bonds and the Mutual Union bonds: At the time of the assignment the assignee had in his hands .seven Hocking Talley bonds and two Mutual Union bonds belonging to the assignor. This is established by two letters of the assignee bearing date respectively July 17th, and September 26, 1885 (the assignment was made July 22d, 1885). There is no dispute that in June, 1885, the assignee had received these bonds from his brother as collateral. His contention is that he had returned them before the assignment. There is no documentary evidence that such was the case. On the contrary the letter of September 26th, after the assignment, states that they were still in his possession. It says: “You will understand that the bonds referred to in my letter as returned to you I still have, you not having called or received them ; and in view of the notes of Harvey being part of the Wallace collateral, a fact which I did not know at the time I received them, I will hold the bonds and after paying my debt will turn over the residue to the estate, or such persons as may be the owner or owners.” The assignee meets this evidence contained in his own letters by simply affirming that the statement therein contained was not true. The object of the writing according to his ■own statement was to mislead the creditors and to manufacture evidence for that purpose. With such an avowal how can it be expected that his testimony that he returned the bonds can be believed ? The evidence of the return of the bonds rests upon his-unsupported oath and had the referee found in his favor upon that issue, we should have been compelled to reverse his judgment. Kehr v. Stauf, 12 Daly, 115; Molloy v. N. Y. C. R. R. Co., 10 Daly, 453; Boyd v. Colt, 20 Howard, 384. While alleged verbal admissions of a party are regarded as the weakest kind of evidence,, his admitted written declarations make evidence of the strongest kind and such writings, unexplained, are conclusive against him. It is true, that the assignee offers an explanation of this letter, but. such” explanation only shakes his credibility still more, for it shows him engaged in deliberately concocting false evidence upon the very point in issue, not for the purpose of this trial, it is true,, but for the purpose of misleading the creditors of the estate. The referee should not do otherwise than charge the value of the-bonds against the assignee. It was proper to charge the highest value up to the time of the trial for there is no evidence that he had disposed of the bonds and therefore was still presumed to have them in his possession. As to the three thousand dollars claimed to have been paid on account of the preferred debt of Clara L. Pool: These moneys were paid to the assignor personally from time to time, no receipts were given and there is no documentary evidence to show that they were paid or received on account of Mrs. Pool’s debt. Payments on her preferred debt are evidenced by checks to her order and the absence of this formality is strongly against the assignee’s claim. It is undisputed lhat her husband was her agent generally, but there is no evidence that the moneys he received were turned over to her or applied in any way upon her account. It is not unreasonable to expect that if these payments were intended by the assignee as a charge against Mrs. Pool, vouchers to that effect would have been exacted. None of the objections to the account require that the report should be referred back. Before affirming it however, and signing as the final decree, I shall require consents of the creditors Miller and McClellan that they have had notice of this proceeding and consent to the entry of the decree as the citation does not appear to have been properly served upon them. With respect to the motion by the assignee for allowance of counsel fee, it seems to me that the expenses of a litigation over these accounts in which he has been unsuccessful with regard to every material issue, should not be charged against the estate. In an ordinary action in equity neither costs nor counsel fee would be awarded to the unsuccessful party, and the assignee stands in that position. I shall allow costs and a counsel fee of $250 for the ordinary work of the accounting, apart from the expenses entailed in trying the issues which have been disposed of adversely to the assignee. After the formal proofs required as above the report will be confirmed.


author: Daly, C. J.

text:
    James O’Connor, App’lt, v. The National Park Bank of New York, Resp’t,

      (New York Common Pleas, General Term,

      Filed May 7, 1894.)

    1. Injunction—When not granted.
    Where there is not only a direct conflict between the witnesses, hut there are undisputed facts which seem to support the contention of the defendant, a motion for a preliminary injunction is properly denied.
    2. Same.
    Such injunction is also properly denied^ where the plaintiff has an'adequate remedy at law.
    Appeal by plaintiff from an order of special term denying his motion to continue a temporary injunction.

      Kellogg, Bose & Smith (Lafiin Kellogg, of counsel), for app’lt; Barlow, Wetmore & Murray , for resp’t.
   Daly, C. J.

The object of the injunction was to prevent the sale, by the bank, of certain collateral belonging to the plaintiff, ($35,000 of the bonds of the Laclede Gas Company), which it holds to secure the note of W. W. Gibbs, endorsed by the plaintiff, for $23,903, at four months, dated June 19, 1893. The bank claims that the collateral was1 deposited with it on the discount of the note; while plaintiff claims that the collateral was deposited under a subsequent agreement, by which the bank undertook, at plaintiff’s request, to exhaust the remedy at law against the maker of the note, before resorting to the plaintiff, or his collateral, for payment; which agreement, as he avers, It- refuses to perform. The office of the injunction was to prevent the sale of the bonds until the agreement was carried out, and to restrain the defendant from discontinuing an action it had commenced against Gibbs, upon the note, in Philadelphia, where he resided. There is no question that when the note fell due, the bank, at plaintiff’s request, commenced the action against the maker and exacted a bond of indemnity from the plaintiff against any liability it might incur thereby; but it is denifed that this was other than a voluntary act done as a favor to a customer and stockholder, that there was any consideration for it, or that there was an agreement to prosecute that action or to forbear resort to the collateral. It is manifest that the determination of this question would be controlled by the proof as to the deposit of the collateral; for, if the deposit was under the arrangement for the commencement of the Philadelphia action, there would be the strongest evidence that there was an agreement to postpone proceedings against the plaintiff until the remedy of the bank against the maker had been exhausted. If, on the other hapd, the collateral was taken upon the discount of the note, there would not only be no probability that the bank had made the alleged agreement, but such an agreement made at the matuaity of the note would be wholly without consideration and unenforceable. It is upon this question of fact that the record before us fails to show that preponderance of proof in plaintiff’s favor which is indispensable to a motion for a prelim-inary injunction. There is not only a direct conflict of witnesses as to the alleged agreement, but undisputed facts seem to support the contention of the defendant. It appears that the note now held by the bank is the last of a series made by Gibbs and endorsed by the plaintiff, each. successive note being discounted for the latter by the bank, and the proceeds, or part thereof, used to retire the maturing paper.

The first note was for $15,000, and was discounted June 4th, 1891, for the plaintiff, who then deposited with the bank;$2o,000 of the Bonds in question as collateral security for the payment thereof. On the 15th December, 1891, when that note fell due, another for the same amount was discounted and the prior note taken up and the same bonds were left with the bank as collateral. The new note fell due June 18th, 1892, and on the 15th plaintiff had a note for $22,675 discounted, paying the maturing note with part of the proceeds and receiving the- difference in cash from the bank, and depositing $10,000 more of the bonds of the Laclede Gas Company with the bank as additional security. The last-named note fell due December 18th, 18,92, and a further note for $23,903 was discounted, the proceeds paying the old note, and the $35,000 bonds were left as collateral; and they remained with the bank when a new note was discounted on June 19th, 1893, to take up the note last mentioned, which fell due the day before, and they have remained with the batik ever since. The note of June 19th, 1893, matured October 22d, 1893, and is the note now unpaid by the bank. The plaintiff’s claim is that the bonds were not pledged by him as security for this note, and that, although they remained in possession of the bank, they did not become collateral for the paper until he pledged them on the faith of the bank to first exhaust its legal remedies against Gibbs. The probabilities on the state of facts here presented, are in favor of the claim made by defendant that the bonds were left as collateral for the last note, as they had been for the preceding note; for no reason is shown why the bank should relinquish the security it held when it was practically renewing the obligation for which such security had been pledged. Upon the , facts therefore, the plaintiff presented a doubtful case for an injunction, and his motion was properly denied for that reason. The injunction was also properly denied for the reason that plaintiff had an adequate remedy at law in case of an unauthorized disposition of bis bonds, for there is no allegation that the securities have no market value or that damages in an action of conversion are not easily provable.

The order appealed from should be affirmed.

Bischoff and Giegerich, J. J., concur.