author: Lewis, J.

text:
    Mary E. Riley, App’lt, v. Ashbel W. Riley et al., Ex’rs, Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Limitation—Delivery op summons to officer—Death of defendant.
    One day prior to the expiration of the statutory limit a summons was placed in the hands of the sheriff for service. He was unable to serve it and the defendant named therein died four days later. A motion to revive against his executors was denied, and this action was commenced over a year later against the executors. Held, that the statute was not arrested by the attempt to make service, as the conditions prescribed by § 399 of the Code wore not followed; that plaintiff’s only means of relief was by a continuance of the proceeding to revive the first action and that the complaint in this action was properly dismissed.
    Appeal from the judgment of the supreme court entered in the clerk’s office of the county of Monroe, on the 18tli day of March, 1891, in favor of the defendants against the plaintiff, dis-. missing her complaint.
    On the 31st day of March, 1882, there was paid to the plaintiff’s husband, General Ashbel W. Eiley, now deceased, for the plaintiff, the sum of $2,500. The general died on the 3d day of April, 1888, never having paid the money or any part thereof to the plaintiff.

      On the '30th day of March, 1888, the plaintiff caused to be issued and delivered to the sheriff of Monroe county, to be served upon her husband, a summons in an action in which she was plaintiff and her husband was defendant, with the intention of commencing an action to recover the claim mentioned.
    The sheriff went to the dwelling house of General Riley in the the city of Rochester on the said 30th day of March, with a view of serving the summons upon him. The general was seriously sick at the time and his physician in attendance refused to permit the service of the summons, and the general died on the 3d day of April following, without service of the summons having been made upon him. On the 24th day of September, 1888, a motion was made at special term on behalf of the plaintiff to revive the action as against the defendant’s executors. The motion was denied. No appeal was taken from the order. Nothing further was done to prosecute the claim until the month of October, 1889, when this action was commenced. The action was duly referred and tried and the plaintiff’s complaint was dismissed by the referee, and this appeal was taken from the judgment entered thereon.

      Walter S. Hubbell, for app’lt; F. L. & J. E. Durand, for resp’ts.
   Lewis, J.

Plaintiff’s cause of action accrued when the money was paid for her to her husband, March 31, 1882, and, unless the running of the statute was arrested by the delivery of the summons to the sheriff, the statute had run against the claim before the death of General Riley. Mills v. Mills, 115 N. Y., 80; 23 St. Rep., 604.

• The delivery o£ the summons to the sheriff was equivalent to the commencement of an action within the provisions of the Code limiting the time for the commencing of actions, and would have arrested the running of the statute had the conditions of § 399 of the Code of Civil Procedure .been complied with, by the personal service of the summons upon the defendant sought to be charged, or by the first publication of the summons pursuant to an order for service upon him in that manner, within sixty days after the expiration of the time limited for the actual commencement of the action.

.The death of General Riley made a literal compliance with these conditions impossible, and it is the contention of the plaintiff that, because of such impossibility, the delivery of the summons arrested the running of the statute, and that the plaintiff should be excused from a compliance with the conditions.

It is held in Estes v. Wilcox, 67 N. Y., 264; Adsit v. Butler, 87 id., 585; Nat. Tradesmen's Bank v. Wetmore, 124 id., 248; 35 St. Rep., 316, that a compliance with all the provisions of § 399 is indispensable in order to prevent the statute from running against the claim.

The plaintiff evidently took this view of the situation, as is evidenced by her attempt to revive the action against these defendants as executors. When defeated in her motion, she abandoned that proceeding and afterward brought a new action directly against the defendant’s executors.

When General Riley died, the summons was in the hands of the sheriff for service; it had an actual potential existence. General Riley was the sole defendant named. Section 757 of the Code provides that in case of the death of a sole defendant where the cause of action survives, the court must, upon a motion, allow the action to be continued against his representative or successor in interest. Whether it can be held that General Riley was a defendant within the meaning of this section before the service of the summons upon him may be doubted, but it must be held, we think, that the only means of relief the plaintiff had, if she had any, lay in the continuance of the proceeding to revive the action. The action in which the attempted service was made must in some manner have been continued to avail the plaintiff anything in arresting the running of the statute. Sección 399 expressly provides that in order to entitle a plaintiff to the benefit of the section, the delivery of the summons to an officer must be followed by the personal service upon the defendant or by the publication of the summons.

It was held in Clare v. Lockard, 122 N. Y., 263; 33 St. Rep., 328, that a substituted service within the sixty days is equivalent to the personal service or publication of the summons within the meaning of § 399. It was held in the case of Palmer v. Ensign, by the superior court of Buffalo, opinion of the court by Judge James M. Smith, that when a defendant dies after the delivery of the summons to the sheriff, and before it is served on the defendant, the action may be continued against his personal representatives. A synopsis of this opinion may be found in the 19th Albany Law journal, 399. The case in 124 N. Y., supra, to which our attention is called by the appellant, is not an authority for the plaintiff. It has no application to an action at law.

We see no way to give the plaintiff relief, and the judgment appealed from should be affirmed.

Dwight, P. J., and Macomber, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Eleanor D. Gaylord, Adm’rx, App’lt, v. Nelson Beardsley, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    1. Pleadinq—Amendment.
    An order granting to a party the right to amend his pleadings as he may he advised cannot he sustained.

      2. Same.
    While the appellate court has power to amend the form of such order so as to provide for the service of a proposed amended pleading, it will not do so where such proposed pleading is clearly demurrable.
    Appeal from an order of the Monroe special term, January 25, 1892, allowing the defendant to “ amend his answer as he may be advised.”

      F. D. Wright, for app’lt; James R. Cox, for resp’t.
   Lewis, J.

The theory of the plaintiff’s cause of action is that on or about September, 1884, one Arthur M. Gaylord caused to be assigned to the defendant, ¡Nelson Beardsley, a bond and mortgage conditioned to pay to the mortgagee named therein $4,784; that in consideration of such assignment, the defendant agreed to pay to said Gaylord the par value of said bond and mortgage, and that the defendant paid on account of such purchase price the sum of $2,500, leaving due Gaylord, including interest, $3,766.75; that Gaylord assigned his claim against the defendant to Ann C. Brad-burn, who brought an action to recover said unpaid balance of the purchase price; that after bringing the action, she died, and the action was continued by order of the court in the name of the plaintiff, as administratrix of Ann C. Bradburn. The defendant interposed an answer to the- complaint; denying that he ever purchased the bond and mortgage, or that he was indebted to the plaintiff in any sum whatever. The answer further alleged that at the request of said Gaylord, he, Beardsley, loaned to Gaylord the sum of $1,500, and that pursuant to an agreement between the defendant and Gaylord, the bond and mortgage in suit were delivered to the defendant to be held by him as collateral security for the payment of the $1,500, and as security also for the payment of a bond and mortgage theretofore executed and delivered by said Gaylord to the defendant; conditioned to pay to the defendant the sum of one thousand dollars, with interest, at the times mentioned in the bond and mortgage; but that said bond and mortgage were not assigned to the defendant unconditionally. The answer further alleged that Gaylord failed to pay the fifteen hundred dollars when it became due, or any part thereof, and*that the defendant caused the said mortgage of $4,784 to be foreclosed and the premises sold, and that they brought upon the sale thereof the sum. of fifteen hundred dollars only, and the defendant demanded the judgment of the court dismissing the plaintiff’s complaint.

In January, 1892, more than a year after serving his answer, the defendant made a motion for leave to serve an amended answer. Ilis motion was based upon his verified petition, which stated, among other things, that in an action brought by the petitioner against Gajdord and Gaylord’s wife to recover the $1,000 agreed to be paid to the petitioner by Gaylord and wife, by the terms of the bond and mortgage mentioned, an answer was interposed by Gaylord and Gaylord’s wife alleging payment in full of the bond and mortgage, and that Gaylord and wife were called as witnesses upon the trial of the action, and testified that it was part of the agreement in respect to the assignment of the bond and mortgage of $4,784 mentioned .in September, 1884, that the said thousand dollar bond and mortgage should be cancelled by the petitioner and considered paid; that the petitioner was defeated in the action. The petition further stated, as follows : “If your petitioner is held to have purchased absolutely the said bond and mortgage so made by Arthur M. Gaylord in March, 1883, then nothing having been paid upon the same, there is due and unpaid thereon from Ann M. Gaylord to the petitioner $2,984.94.” There was presented on behalf of the petitioner on the hearing of the motion his proposed amended answer. It was entitled “ proposed supplementary or amended answer handed up to the court by defendant upon the argument of the motion.” The proposed answer did not allege any facts which had happened after the service of the first answer. So that the proposed answer was not in any sense a supplemental answer. The amendment to the answer which the defendant proposes to serve wholly fails to state any defense or counterclaim, and, if allowed to be served, and a demurrer should be interposed to it, the demurrer would be sustained. The proposed answer purports to set up a claim against the plaintiff for a balance due and unpaid upon the bond and mortgage of $4,784, but it nowhere alleges that the bond and mortgage had ever been assigned to the defendant, or that he owned them. This difficulty presented itself undoubtedly to the mind of the court at the hearing of the motion at special term, and it was sought to be obviated by giving to the petitioner the right to “amend his answer as he may be advised.” An order granting to a party the right to amend his pleadings as he may be advised cannot be sustained. New v. Aland, 62 How. Pr., 185.

Had the proposed amended answer set out in the appeal book stated a defense or counterclaim, the form of the order could be changed or amended by this court, so as to provide for the service of the proposed amended answer, and, as thus altered, it could be affirmed. But no good purpose would be subserved by providing for the service of a demurrable answer. Hoffman v. Hoffman, 35 How., 384; Rumsey’s Pr., vol. 1, 287.

The order appealed from should be reversed, with ten dollars costs and the disbursements of this appeal.

Dwight, P. J., and Macomber, J., concur.


text:
    John Dennis, App’lt, v. Robert C. Harris et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    1. Negligence—Contributory.
    Plaintiff sold hay to defendants which they were to press To do this they used a steam engine, sparks from which blew in the door of the barn and set fire to it. It was claimed that defendants were negligent in using an engine without a spark arrester, and in placing it so near the barn with the wind blowing as it did. The evidence as to the absence of a spark arrester was conflicting. It appeared that plaintiff was present at the time, and although he was afraid of such engine, set defendants at work knowing where they had placed the engine. Held, that plaintiff was guilty of contributory negligence.
    3. Same.
    The court, in charging as to contributory negligence, said “If you should find that the defendants were very negligent and that the plaintiff was slightly negligent, in leaving his property exposed to the sparks which might come from the engine, even then he cannot recover.” Held, no error.
    Appeal from a judgment entered in Cayuga county, in favor of the defendants, on a verdict of a jury. The notice of appeal, after reciting that the plaintiff appeals to the general term from the judgment, states the appellant intends to bring up for review upon such appeal the order dated the 15th day of January, 1890, denying a motion for a new trial.

      A. P. Smith, for app’lt; F. D. Wright, for resp’ts.
   Lewis, J.

This action was brought for the loss of plaintiff’s barn and contents by a fire which the plaintiff claims was caused by the defendants’ negligence. The plaintiff had sold to them a quantity of hay in his barns. The defendants were to press the hay; and in so doing they used a steam engine. The plaintiff assisted in the work of pressing the hay. While thus engaged, sparks of fire from the engine blew into an open door of the barn and set fire to some straw, and the barn and its contents were destroyed. It was claimed by the plaintiff that the fire was caused by the negligence of the defendants in using a defective engine, the alleged defect consisting in the omission to nse a spark arrester in the smoke pipe of the engine. If the defendants used their engine on the occasion mentioned without having a spark arrester pn the smoke pipe, they were guilty of negligence which caused the destruction of plaintiff’s property.

There was a very large amount of conflicting evidence upon the question as to whether there was, in fact, a spark arrester in the smoke pipe of the engine.

It cannot be claimed that the evidence upon this question so preponderated in favor of the plaintiff as to justify this court in setting aside the verdict on that ground. The verdict of the jury upon this question must be held to be final.

It is contended by the plaintiff that the defendants were guilty of negligence in placing the engine so near the opening into the barn mentioned, with the wind blowing as it did at the time. The evidence tended to show that all the surrounding facts affecting the question of negligence as to the location of the engine, the condition of the wind,- and the open doorway, were at least as fully known to the plaintiff as to the defendants. The plaintiff was present and knew all about the situation, and if there was any negligence arising from these circumstances, the plaintiff’s negligence contributed to his loss.

While the plaintiff testified that he knew nothing about the ■ construction of the smoke pipe'of an engine, he knew that engines while at work would emit sparks. He testified that he had employed them four or five times before the fire, and that he was afraid of them; yet, notwithstanding his fears, he set the defendants at work pressing hay, knowing just where the defendants had placed their engine, and the other circumstances mentioned.

The case seems to have been fairly and carefully tried. W e have examined all of the plaintiff’s exceptions to the admission and rejection of evidence, and find nothing in them calling for a new trial. The learned trial justice, in his charge to the jury, after rehearsing the facts of the case, said : “ Now, what do you say in regard to these facts, which are practically undisputed and uncontradicted ? Do they show to your minds that the plaintiff used that same degree of care in protecting his own property that a reasonably prudent man would be required to employ under the same circumstances? Do these facts establish clearly to your minds that he employed the same degree of care in protecting his property that he required of the defendants in the management of their property in the vicinity of his barn ? He was bound to do it. He cannot, by his negligence, contribute to such an injury* and then recover from the defendants. If you should find that the defendants were very negligent and that the plaintiff was slightly negligent in leaving his property exposed to the sparks which might come from the engine, even then he cannot recover.” Plaintiff’s counsel excepted to this part of the charge.

We think the rule of law governing the question of contributory negligence of the plaintiff was correctly stated in this part of the charge, and that the charge is in harmony with the doctrine of the cases cited in the brief of the appellant’s counsel. From the view we take of this appeal, it is not necessary to decide whether the appellant’s notice of appeal brings up for review the order denying his motion for a new trial.

We think the verdict of the jury should be held to be decisive upon the questions of fact, and that the judgment and order appealed from should be affirmed.

Dwight, P. J., and Macomber, J., concur.


text:
    Jacob Lutz, Resp’t, v. August Keiser et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Services—Commissions—Weight op evidence.
    In an action for commissions for selling defendants’ goods plaintiff testified that he first offered to work for a salary but that defendants preferred to have him work on commission. Defendant K. and his father testified that p’aintiff did not work on commission but for a salary,which had been paid. Another witness testified that he heard plaintiff offer to work for a salary, but that he did not hear all the conversation. Held, that plaintiff’s evidence was not negatived by this latter testimony; that a clear question of fact for the jury was presented and their verdict must be held final.
    Appeal by the defendants from a judgment upon a verdict of a jury in Erie county, entered on the 14th day of October, 1891, and from an order denying a motion for a new trial upon the minutes.

      Edward L. Jellinick, for app’lts; Eugene V. Chamberlain, for resp’t.
   Lewis, J.

The plaintiff’s testimony tended to show that he sold tobacco for the defendants for an agreed commission; that the defendants were to pay his travelling expenses; that there was a balance due him from the defendants on the 15th day of December, 1891, on account of said sales of $250.54, with interest from said date.

The defendant August Keiser and his father, Leopold Reiser, testified that the plaintiff did not work for the defendants upon commission, but that he worked upon an agreed salary of ten dollars a week and his travelling expenses.

If the plaintiff was only entitled to ten dollars a week, the defendants had fully paid him for his labor.

The testimony of the defendants’ witness, John W. Stykoff* that he heard the plaintiff offer to work for the defendants for ten dollars a week, does not negative the plaintiff's evidence, for he testified that he at first offered to work for that, but that the defendants did not accept the offer, but said they preferred to have him work on commission.

Stykoff testified that he did not hear all the conversation.

The evidence presented a clear question of fact to the jury; they credited the plaintiff, and their verdict must be held to be final.

The judgment and order appealed from should be affirmed.

Dwight, P. J., and Macomber, J., concur.


author: Lewis. J.

text:
    Frank Barrett, Pl’ff, v. The Town of Walworth, Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 23, 1892.)

    Towns—Highways—Obstructions.
    In opening a highway thirty or more years ago, a large houlder, thirteen to fourteen feet across and three to four feet high, was found in the line of the road and near its center. This was allowed to remain, the road being carried around it. The boulder could be seen for a quarter of a mile on either side. Plaintiff's horse became frightened as he approached it, reared and shied to the side of the road, upset the wagon and injured plaintiff. Held, that whether this houlder should be removed in constructing the highway was a question for the judgment and discretion of the commission'ers; that in deiermining that question they acted in a quasi judicial capacity, and the town was not liable for their error of judgment, if it was such, and that a nonsuit was properly granted.
    Motion for a new trial on case and exceptions directed to be heard in the first instance at the general term, after a nonsuit of the plaintiff at the circuit.

      Edwin Hicks, for pl’ff; Walter S. Hubbell, for def’t.
   Lewis. J.

There was laid out and opened in the town of Walworth, Wayne county, thirty years or more ago, a highway three rods in width. In opening it there was found in- the line of the highway and very near the center thereof a large natural boulder. The portion thereof extending above the surface of the ground was idne feet four inches from east to west, twelve feet north and south, thirteen feet northwest and southeast. The west side was two feet nine inches above the ground, the south side three feet seven inches above and the east side three feet eleven and one-half inches above the ground. The highway ran in a northerly and southerly direction. In opening the highway the town authorities did not remove the boulder, but in constructing the roadbed turned it to the west side of the boulder. On the 26th day of May, 1889, in the day time, the plaintiff was driving a horse before a buggy on the highway in question and as he approached near to the stone his horse was frightened by it, reared and sliied to the side of the road, upset the wagon and injured the plaintiff, and he brought this action to recover compensation for his injuries. At the close of his evidence he was nonsuited and his exceptions were directed to be heard at the the general term in the first instance.

The highway where the accident occurred was straight for a long distance. The stone was plainly visible to a person traveling on the highway for a quarter of a mile either - side of the stone.

The road-bed as it turned from the general course of the highway and passed by the stone was of sufficient width to allow a team under ordinary conditions to safely pass it. The land in the vicinity of this boulder was quite stony. Other stones of considerable size were lying in and upon the sides of the highway, but of much less size than the one in question. The boulder was imbedded in the ground, but to what depth the record fails to show. It is the contention of the plaintiff that the size and appearance of the stone were such, lying as it did in the center of the highway, it was likely to frighten road-worthy horses, and ■that the highway commissioner was guilty of negligence in permitting it to remain in the road. The evidence fails to show that there was anything peculiar in the shape or appearance of' the stone to distinguish it from other boulders, except its dimensions.

The general rules of law as to the duties of public authorities charged with the care of highways have been quite well settled by a long line of decisions. It is as a general proposition negligence to permit objects to remain in a highway which from their nature or appearance obviously have a tendency to frighten horses of ordinary gentleness and docility. Thompson on Negligence, 778.

A reasonably safe and commodious roadbed must be maintained so that the traveler can either by day or night pass over it without being exposed to unnecessary peril by objects therein. A very different roadbed, however, is expected and required in the highways of the sparsely settled farming districts than is expected to be provided in cities and villages. Towns are not obliged to keep the whole of a highway from one boundary to the other free from obstructions and fit for the use of travellers. In many cases all the property of the towns would be insufficient for that purpose. There may be ledges of rocks, ravines and water courses in the road. It cannot be expected that towns shall in all cases make bridges the whole width of the road or fill up ravines or cut down ledges of rock. Highway officers are not required to grade the whole space within the limits of the highway so that a traveller can safely drive his carriage over every part of it. In ordinary -cases if they provide a pathway of suitable width and so define it as that there shall be no reasonable danger of its being mistaken, they have fulfilled their duty to the public. Ireland v. Oswego Plank Road, 13 N. Y., 531.

Rocks and stones within the limits of the highway, but not-obstructing the travelled path, are not defects for which a town is liable. Keith v. Easton, 2 Allen, 554 (citing 16 Pick., 189; 7 Cush., 498).

When, in laying out and opening highways, natural obstacles like streams, gullies, hills or boulders are encountered, the authorities are at liberty to change the course of the highway to-pass around the obstacles. They would not, however, be justifled in allowing an actual obstruction or encumbrance to remain in the highway which tended to impede or hinder travel and made the highway dangerous to travellers coming in contact or ■collision with it. The record shows that this boulder did not •constitute an actual obstruction in the way of travel, for a roadway of sufficient width was constructed at the side of it. Upon the highways of our country objects of various description will be found ; many of them may cause horses to take fright, but to ■compel the authorities to remove them all would impose a too .serious burden upon the public.

There is a class of cases holding the highway authorities liable for obstructions placed in the highway, like piles of stones, lum'ber or any object liable and calculated to frighten road-worthy horses. In such cases a question is presented for the decision of a jury as to the negligence of the town authorities. In Eggleston v. Columbia Turnpike Road, 18 Hun, 146, a quantity of stone was deposited upon the margin of the road for the repair of a culvert. In Foshay v. Town of Glen Haven, 25 Wis., 288, a horse was frightened by a hollow burnt log lying close beside the travelled part of the road.

It'was held in these cases that a case was presented for the de•oision of a jury.

In another case a large rock or boulder had been taken out of the bed of the highway and was allowed to remain an unreasonable time. It was held the town was liable for damages for injuries to the driver by his horses taking fright at a stone. These were cases of misfeasance and not of nonfeasance. In the cases last referred to the object or thing was one which the commissioners were bound to remove irrespective of its tendency to frighten horses.' In order to charge the town with liability the character of the object should be such as to make the danger obvious and the duty of the town clear. 30 Conn., 129; 39 id., 376; 65 Me., 547; 66 id., 402.

Had the boulder in question been placed in this highway after the highway was laid out and opened and been allowed to remain h>y the public authorities for an unreasonable length of time, a different question would be presented. Town authorities in laying out and opening a highway act to a certain extent as judicial or quasi judicial officers.

They are required to exercise their judgment and discretion, and, within certain limits, the town is not liable for their errors of judgment or for errors in the general plan of their work. Urquhart v. Ogdensburg, 91 N. Y., 67; same case again in 97 id., 238; see, also, Gould v. Topeka, 32 Kans., 485.

They cannot in constructing a highway leave therein obvious dangers to the travelling public. In laying out this highway this boulder was found in the line of the road. It was a natural object. Its removal involved the expenditure of considerable labor, and the question was presented to the authorities as to the propriety of its removal. They determined to change the course of the roadbed and pass to the side of the boulder and not subject the town to the expense of its removal. And in determining that question they acted, we think, in a quasi judicial capacity and if they erred in judgment the town cannot be liable for the error.

We think there was no error committed in directing the non-suit and that the plaintiff’s motion for a new trial should be denied and judgment ordered for the defendant upon the nonsuit.

Dwight, P. J., and Macomber, J., concur.


author: Per Curiam.

text:
    William A. Haggerty, App’lt, v. James J. Phelan, Resp’t.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    Pleading—Amendment on trial—Teems.
    On sustaining demurrer to part of an amended answer the court gave defendant leave to serve a second amended answer, which leave he did not avail himself of. When the case was brought to trial he moved for leave to serve an amended answer. Held,, that payment of term fees from the time of service of the first amended answer and an affidavit of merits should have been required as conditions for granting such motion.
    Appeal from order allowing defendant to serve an amended answer on terms.

      Charles M. Hall, for app’lt; Samuel Duffy, for resp’t.
   Per Curiam.

We do not disturb the discretion of the court below in allowing service of amended answer, but think more stringent terms should have been imposed. An amended answer had already been served. On a demurrer to part of the amended answer leave had been given to serve an amended answer. The defendant paid costs but did not act upon the leave. These proceedings did not involve the new matter in the answer which the defendant was permitted to serve. But they were warnings to attend to the sufficiency of the answer as embracing all defenses. The motion below was made just as the case was to be brought on trial. The order below should have as a condition imposed beside what was imposed the taxable term fees, from the time the first amended answer was served. It will be taken that there were five term fees.

The order appealed from is modified by imposing the payment of seventy dollars as a condition of leave and' also that defendant shall file and serve an affidavit of merits. Order, modified and as modified affirmed, without costs.

Sedgwick, Ch. J., Freedman and McAdam, JJ., concur.


text:
    The Millstone Granite Co., Resp’t, v. James F. Dolan, App’lt.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    Contract—Construction.
    Plaintiff agreed to do work for defendant agreeably to the drawings and' specifications made by the architect, and to furnish all the materials for completing the &ranite work for specification and plan figured on at its office. The plan and specification so figured on were only a part of the architect's drawings and specifications. Held, that plaintiff was not required by its contract to furnish all the granite work disclosed by such drawings and specifications, but only such as appeared on the plan and specification-figured on at its office.

      Appeal by defendant from judgment entered upon the report of a referee.

      Early & Prendergast, for app’lt; Frank Bergen and Henry G. Atwater for resp’t.
   Per Curiam.

The action is for the price of granite, worked, sold and delivered by plaintiff to defendant. A construction of the written contract will decide the dispute between the parties. By that the plaintiff agreed that they would work for the Twenty-second Armory building on trucks agreeably to the drawings and specifications made by John P. Lee, architect, and signed by the said parties and hereto annexed, in a good, substantial and workmanlike,manner, to the satisfaction and under the direction of the said John P. Lee, and also shall and will find and provide such good, proper and sufficient materials of all kind whatsoever as shall be proper and sufficient for the completing and finishing all the granite work for specifications and plans figured on at the office of this company at Millstone Point at this date, of said building mentioned in the specification, for the sum of $12,050.

The appellant contends that for the price named the plaintiff was to furnish all the granite work disclosed by the drawings and specifications of John P. Lee, architect. This is not correct, for, by the contract work 'upon the granite is to be done in accordance with such plans and specifications, but the granite work to be furnished was such as was described in specifications and plans figured on at the office of the company. In fact there had been such specifications and plans figured on at the office, and they were not the same as the drawings and specifications of Lee, being but a part of the latter. The figuring was upon four sheets of paper.

The evidence in the case .sustains this construction of the contract, and shows its reasonableness. There was in the contract made a reference to extra work when the granite had been partly delivered ; the defendant agreed in writing “ to pay for all extra over work that has not been called for in plans and specifications left at your office February 15th, 1889, at time of making contract, etc.”

The plaintiff fulfilled the contract to furnish granite according to the specification figured, and also furnished other granite work at request of defendant. The defendant contested plaintiff’s right to recover this extra granite, on the ground that the granite work was called for by the plans and specifications of John Lee. We have construed the contract otherwise. The plaintiff was entitled to recover upon the balance due under the contract, and for the extra work.

Judgment affirmed, with costs.

Sedgwick, Ch. J., Freedman and McAdam, JJ., concur.


text:
    George R. Burrows, App’lt, v. The Atlas Steamship Co., Limited, Resp’t.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    Trial—Requests to direct verdict.
    Where both parties ask for a direction of a verdict, this gives the court the office of the jury, and where the evidence is not conclusively in favor of the plaintiff a finding for defendant will not be disturbed.
    Appeal by plaintiff from judgment entered upon verdict of jury and from order denying motion for new trial made upon the minutes.

      James W. Treadwell, for app’lt; Edwin T. Rice, for resp’t.
   Per Curiam.

There were no errors of law made during the course of the trial. At the end of the testimony each side asked that a verdict be directed in its favor. This gave 'to the judge the office of the jury. The evidence was not conclusively in favor of the plaintiff and the finding of the judge for the defendant was final.

Judgment and order from affirmed, with costs.

Sedgwick, Ch. J., and McAdam, J., concur.


author: McAdam, J.

text:
    Clark Robinson Griggs, App’lt, v. Melville C. Day et al., Ex’rs, Resp’ts.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    Referee—Fees—Stipulation.
    A stipulation that the referee may charge “such fees as he deems proper” is invalid, as parties cannot agree to leave it to the referee to decide the measure of his compensation, a dsuch stipulation does not fix the different rate authorized by § 3296 of the Code.

      (National Bank v. Tamayo, 77 N. Y., 476, and Mark v. City of Buffalos 87 id , 184, followed.)
    Appeal from order affirming taxation of costs.
    On the taxation of plaintiff’s costs, the defendants objected to the item of ¡¿7,500, the fee paid to the referee before whom the action was tried.
    The plaintiff claimed the right to tax said charge under a stipulation whereby it was agreed “ That the referee shall not be limited to the statutory fee of six dollars per day for his services in this case, but may charge such fees therefor as he deems proper.” The stipulation was reduced to writing and subscribed by the parties to be charged. The case involved large interests and was calculated to consume much of the referee’s time, and was of such exceptional character that it was next to impossible to determine in advance what a reasonable compensation would be. The 'referee rendered his services and the plaintiff paid the sum fixed by the referee in good faith and in reliance upon the stipulation.
    There is nothing to show that the charge is unreasonable. On the contrary, the nature of the litigation, the magnitude of the interests, the amount involved, the importance of the case, the voluminous testimony to be considered, the intricacy of the ques-

      tians presented, all indicate that the sum charged is not extravagant, but fair compensation commensurate with the labor expended.
    Indeed, the only objection urged against the charge is that it was not taxable because the stipulation failed to specify any specific rate of compensation. The clerk sustained the objection, and the special term judge, on appeal from the clerk’s ruling, affirmed the action of the clerk. From the order of affirmance the plaint-. iff appeals.

      R. G. Ingersoll and J. H. Post, for app’lt; Wm. R. Bronk, for resp’ts.
   McAdam, J.

It is a maxim of the law, that that is certain which may be made certain; certum est quad cerium reddi potest, Co. Litt., 45; 1 Bouvier, p. 214, subd. 3, and an agreement that the value of work done shall be fixed by a third person is valid and the amount so fixed recoverable. See D. & H. C. Co. v. P. C. Co., 50 N. Y., 250. The circumstance that the parties agreed that the value should be fixed by the referee would apparently lead to the conclusion that the sum so fixed was equally obliga i ory, unless the statutory provision as to referee’s compensation, or the judicial nature of the position of referee, make it improper that he should determine the question.

Sec. 3296 of the Code provides that a referee shall be paid six dollars for each day spent in the business of the reference, unless a different rate of compensation is fixed by consent of the parties. The court of appeals construed this section in National Bank v. Tamajo, 77 N. Y., 476, and in Mark v. City of Buffalo, 87 id., 184, by holding that the parties could not agree to leave the referee to decide the measure of his compensation, as that left the subject open and indefinite, and did not fix the different rate authorized by the Code-provision before referred to. It has been urged that the determination of that point was unnecessary to the decision of either of those cases, and the remarks in reference thereto merely dicta. The suggestion is not without reason, yet the proposition decided is so clearly enunciated in the first case, and plainly reiterated in the second, that it would seem almost going counter to our appellate tribunal to hold that that court did not intend to do precisely what it did in language too plain to be misunderstood. Good faith, however, would seem to require that where parties have deliberately entered into a written stipulation, and one has been induced on the faith thereof to part with $7,500, that the other party to the contract should be rigidly held to its terms, for if not so held in this instance the respondent must lose $7,500 by the-bad faith of the defendants in successfully repudiating their solemn obligation. Hone of the cases intimate that the agreement is contrary to public policy, and good morals would appear to require that it, like other contracts, be enforced according to its terms. It. does seem that where parties have, by a written agreement, stipulated that the referee shall fix the amount of his fees, they have expressly waived the statutory limit of six dollars per day. and have substituted a different rate of compensation, one not fixed by the Code, but equally certain, because the amount was to be determined in a mode agreed upon by the parties, and which was equally as specific when pnce fixed as if the exact amount had been specified in the agreement itself.

This view of the law was sustained by a majority of the court in Burt v. Oneida Community; 59 Hun, 234; S. C., 36 St. Rep., 765; 20 Civ. Pro., 167; 12 N. Y. Supp., 806, which would be followed but for the fact that the rulings made by the court of .appeals in the two cases cited, are so clearly opposed to the decision in Burt v. Oneida Community, supra, that we feel constrained to respect its instruction by affirming the order appealed from, with costs.

Sedgwick, Ch. J., concurs.


text:
    The Swan Lamp Manufacturing Co., Resp’t, v. The Brush-Swan Electric Light Co., of New England, App’lt.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    I. Sale—Parties.
    Defendant became the sole agent for the sale of lamps, etc., manufactured* by plaintiff for a certain territory under an agreement by which plaintiff was to deliver such goods as were sold by defendant on board of such cars as it might designate, and defendant was to be allowed on such sales a discount of twenty per cent from trade prices, and a further discount for cash. Payment was to be made by ninety day drafts. Held, that this constituted a sale of the goods to defendant and not to its customers.

      2. Pleading—Contract!
    The former rule, that a party who has fully performed a special contract on his part may count upon the implied assumpsit of the other party to pay the stipulated price, and is not bound to declare specially on the agreement, has not been changed by the Code.
    3. Same—Unexpired credit.
    In_ an action for goods sold an objection that as to a part the term of credit had not expired is unavailing when not raised by the answer.
    Appeal from a judgment entered in favor of the plaintiff on the report of a referee, to whom it was referred to determine the issues.

      Cravath & Houston, for app’lt; G. H. & F. L. Crawford, for resp’t.
   McAdam, J.

It is alleged by the defendant and admitted by the plaintiff that the goods furnished by the plaintiff were delivered under and pursuant to a contract between the defendant and the Swan Incandescent Electric Light Co., which was transferred by that company to the plaintiff, so that the plaintiff for all practical purposes was substituted as a party to the contract in place of that corporation. The defendant by the contract became the sole agent for the sale of electric lamps and other electrical apparatus manufactured by the plaintiff, which agency covered certain territory specified in the agreement. The plaintiff was to deliver such goods as might' be sold by the defendant and ordered by it on board of such cars or other conveyances as it might designate, and the defendant was to be allowed on such sales a discount of twenty per cent, from the trade price fixed by the plaintiff. The goods so delivered were to be paid for by the defendant by ninety day drafts or, at its option, in cash, with one and a half per cent, additional discount. The plaintiff filled orders furnished by the defendant until it became indebted in the amount found due by the referee. The transaction between the plaintiff and defendant was practically a sale of goods by the former to the latter on its credit at twenty per cent, less than trade prices, deliverable in such manner as it directed. It certainly was not a sale of goods by the plaintiff to the defendant’s customers, for the plaintiff by the contract was to make no sales in the territory assigned to the defendant, except through it and on its responsibility. The defendant insists that the plaintiff should have declared on the special agreement, and could not recover as for goods sold and delivered. The answer to that objection is, that the Code has not changed the former rule of pleading, that a party who has fully performed a special contract on his part may count upon the implied assumpsit of the other party to pay him the stipulated price, and is not bound to declare specially on the .agreement. Farron v. Sherwood, 17 N. Y., 227; Hosley v. Black, 28 id., 443; Higgins v. Newtown & F. R. R. Co., 66 id., 604. The evidence adduced satisfactorily sustains the findings and conclusions of the referee, and we find no error in the rulings that require a new trial. The objection that, as to a portion of the goods, the credit of ninety days had not expired when the action was commenced is unavailing because not raised by the answer. Smith v. Holmes, 19 N. Y., 271. This upon the ground that new matter must be pleaded. Code, § 500, subd. 2. It follows tljat the judgment appealed from must be affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concur.


text:
    Andrew W. Schelling, App’lt, v. Cord Bischoff et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    Bill of sale—Fraud—Reformation.
    Plaintiff gave to defendants a bill .of sale as security for a demand against him. Defendants took possession and sold the goods sooner than plaintiff expected, and he brought this action to set aside lhe bill of sale on the ground of fraud. The evidence showed that no material representations were made to induce him to execute it. Held, that the complaint was properly dismissed; that plaintiff’s remedy, if any, was by action for reformation and for an accounting of the proceeds of the sale.
    Appeal by the plaintiff from a judgment entered upon dismissal of his complaint by direction of the judge presiding at the equity term after a trial thereat.

      James Forrest, for app’lt; N. W. Tompkins, for resp’ts.
   McAdam, J.

The evidence shows that there were no material misrepresentations made to induce the plaintiff to execute the Bill of sale. He intended to give the defendants, who were creditors of his, security for their demand against him, a'nd it was put in the form of a bill of sale, when a chattel mortgage might have been more appropriate for the purpose intended. After the defendants received the bill of sale, they asserted their rights under it sooner than the plaintiff expected, and as a consequence his store, stock in trade, etc., were sold to satisfy their claim. The action is to set aside the bill of sale and a confession of judgment thereafter obtained on the ground of fraud. The defendants removed their judgment from the record by satisfaction piece duly filed, and the acts done by them are justified solely under the bill of sale. Nothing was taken under the judgment, and as it was ■cancelled of record before the commencement of this action, the plaintiff required .no equitable relief to be discharged from it. The bill of sale not having been procured by fraudulent representations as to material facts, the complaint was properly dismissed, not so much for the absence of allegations of fraudulent intent, as from the want of evidence of fraud in procuring the execution of the instrument. Though absolute on its face, the bill of sale was clearly intended, not as a satisfaction of the debt, but by way of mortgage only, and if the action had been to declare it a mere security for the sum due, and for an accounting of the proceeds of sale, it would have been maintainable. Equity, it is true, will in a proper case penetrate beyond the covering of form, and look at the substance of the transaction, and treat it as it really and in essence is and was intended to be and as it should have been declared in the papers,-for a writing, like the phonograph should record the true expressions and intentions of the parties as they made and proclaimed them. Where it does not, reformation is the remedy. There may be trouble in furnishing satisfactory proof of fraud or mutual mistake; none with the remedy if the required proof is sufficient.

The difficulty here is, that if the bill of sale had been a chattel mortgage the defendant might have done the same acts under it as were performed under the bill of sale; that is, taking possession and selling the property to the highest bidder. The mortgagees would have been liable however to a suit in equity calling them to account for the proceeds of sale. Jones on Chat. Mori, §353. The present suit is not for reformation and account, but is founded on fraud to avoid the instrument altogether and for damages, as if no writing whatever had been executed or intended to be executed. The plaintiff is not entitled to that broad relief on the ■evidence. As the instrument executed, and that intended to have been given, concerned personal property, and would in either ■event have produced the same result, the variance of form is in the present instance of no practical importance. It follows that the judgment appealed from must be affirmed, with costs.

Freedman, J., concurs.


text:
    Peter Stastney, Resp’t, v. The Second Avenue Railroad Co., App’lt.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    Negligence—Street railroads—Contributory.
    Plain'iff. who was a passenger in one of defendant’s cars, was asked ky the driver to assist in getting the car off the track to pass an obstruction. While engaged in that work, another car jumped the track for the same purpose, but on the wrong side, and plaintiS was caught between them and injured. Held, that plaintiS was lawfully upon the street, and could not be said, as matter c.f law, to have contributed to liis injury, and that the questions of fact were properly submitted to the jury.
    Appeal from "judgment entered on verdict in favor of the-plaintiff, and from an order denying a motion for a new trial.

      Merrill & Rogers, for app’lt; L. J. Grant, for resp’t.
   McAdam, J.

Plaintiff was on February 27th, 1890, a passenger in one of the defendant’s cars going up town. When the car reached a point on First avenue between Sixty-Fifth and Sixty-Sixth streets, it found the track blocked by a broken down furniture van or truck. The passengers were requested by the conductor to get out and assist in getting the car off the track, so-as to get around the truck, that the car might continue its journey. The passengers, among them the plaintiff, obeyed the request, and while thus assisting, a car coming down the avenue, finding itself blocked by the same obstacle, “jumped ” the track, but instead of “jumping” to the west, which would be the proper thing for it to do, it “jumped” to the east, and caught the plaintiff between the cars, doing him the injuries of which he complains. If the. down town car had “jumped ” the track to the west, as it should have done, the danger would have been avoided, but “ jumping” toward the east naturally brought it in-collision with the up town car, and in this manner the damage was done. The plaintiff was lawfully upon the street at the time, by the invitation of the defendant’s conductor in charge of the uptown car. He had no warning of the danger, and cannot be said to have contributed to the collision, or to the bringing the injury upon himself.

The learned trial judge submitted the question of negligence to-the jury, and they found- for the plaintiff on evidence which sustains their verdict, which was moderate in amount. The defendant’s counsel moved to dismiss the complaint on the ground that the testimony and circhmstances detailed neither proved negligence on the part of the defendant, nor freedom from fault on the part of the plaintiff. The motion was properly denied, as the-evidence and the inferences to be drawn from it were matters-about which minds might differ, and it was for the jury to determine the question of fact involved.

No error was committed during the trial, and the judgment and order denying the motion for a new trial must be affirmed, with costs.

Freedman, J., concurs.


text:
    Louise Muller, Resp’t, v. The Orden Germania, App’lt.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    1. Insurance (Life)—-Certificate of death—Duration of disease.
    There is nothing in the requirement of a certificate of the cause of death which makes the "mere opinion of the attending physician conclusive; evidence as to the duration of the disease.

      2. Same.
    The insured in her application stated she was in good health and not suffering from cancer. She died in fifteen months, and the certificate of death gave the cause"as cancer “and the duration of the disease two years.” The physician had only attended the deceased for five months. Held, that his statement as to the duration of the disease was merely an opinion, and not being required by the by-liws of defendant or § 60f of the consolidation act, was not evidence of the fact.
    Appeal from judgment in favor of the plaintiff on verdict of a jury, and from an order denying a motion for a new trial.

      Lewis Sanders and M. Auerbach, for app’lt; Charles & Alfred Steckler, for resp’t.
   McAdam, J.

The defendant is a benevolent corporation, and the plaintiff the beneficiary named in a certificate of membership therein, issued to her sister, by the terms of which the sum of §1.000 on her death became payable to the plaintiff.

The decedent was admitted to membership December 26, 1888, and died March 24, 1890. In her application for membership, she represented herself to be in good health and not suffering from cancer.

It is claimed that there was a breach of the warranty, because it appeared by the certificate of death furnished by Dr. Lewis, her attending physician, on March 24, 1890, that the “ chief cause of death was cancer of the uterus, and the duration of disease two years,” which would indicate that the decedent had been troubled with that disease for about nine months prior to her admission as a member of the order.

The certificate was offered in evidence by the defendant, and the question 'presented is whether such certificate, unimpeached and uucontradicted, conclusively establishes the breach of warranty pleaded by the defendant. Dr. Lewis, the physician who gave the certificate, never attended the decedent till October 18th, 1889, five months preceding her death, so that the statement in the certificate that the duration of the disease was two years was not founded on actual knowledge of the fact, and must be taken rather as an expression of opinion, and as such in no sense con-, elusive evidence of the fact stated.

True, the plaintiff was required, as a condition precedent to the ■enforcement of her claim, to present a certificate of death issued by the board of health. The purpose of this certificate was to establish the death of the member, proof in this form being alone .acceptable. There is nothing, however, in this requirement making- the mere opinion of the attending physician conclusive evidence as to the duration of the disease he was professionally called upon to heal.

The preliminary proofs presented to an insurance company in compliance with the conditions of the policy of insurance are admissible as prima facie (not conclusive) evidence of the facts stated therein against the insured and in behalf of the company. Ins. Co. v. Newton, 22 Wall., 32. The court of appeals, in commenting upon this case, said: “ It may be inferred that the whole (proofs) were verified by the claimants, and that they were called for by the contract of insurance." Goldschmidt v. Mutual Life Ins. Co., 102 N. Y., 498; 2 St. Rep., 421. If so verified they might be considered as admissions made by the claimants, and as such evidence of the facts presented.

In B. L., T. & S. D. Co. v. K. T. & M. M. A. A., 126 N.Y., 458; 38 St. Rep., 247, it was held that the statute and ordinances requiring attending physicians in Buffalo to furnish certificates setting forth the cause, date and place of death of any person under their charge were police regulations, and the records required for local and specific purposes not public records in such sense as to make them evidence between private parties of the facts recorded.

The consolidation act of 1882, § 604, applicable to' the city of New York, requires that, “ Physicians who have attended deceased persons in their last illness shall, in the certificate of the decease of such persons, specify, as near as same may be ascertained, * * * the direct and indirect cause of death of such deceased persons.”

There is nothing requiring the physician to certify to the “ duration of the disease,” expressio unius, exclusio alterius, so that the-opinion of the attending physician that the duration of the disease was two years was not called for by art. 9, § 1, of the constitution and by laws of the defendant, interpreted in the light of the statute before referred to. Hence such opinion does not rise to the dignity of evidence prima facie or otherwise.

Certificates given by public officers are evidence only of the facts which they are required to record; as to other matters, they are extra-judicial and must be rejected. Greenl Ev., § 498. In Buffalo L., T. & S. D. Co. v. K. T. & M. M. A. A, 56 Hun, 304; 30 St. Rep., 464, the court held that “ there is no rule making the records or books of the board of health evidence as to the cause of death on the trial of an action at law where that question is material. Nothing but common law evidence would defeat a. recovery in the absence of a statute or constitutional provision making other evidence competent.” So, in Hoffman v. N. Y. C. & H. R. R. R. Co., 46 N. Y. Supr. Ct., 526; aff’d, 87 N. Y., 25, it was held, “ that records kept at a police station and hospital showing injuries received by plaintiff by an accident are not admissible in evidence against him in an action for damages for such injuries, it not appearing that the entries therein were made by persons having knowledge of the facts, or from statements of the plaintiff."

The defendant on the motion to dismiss the complaint objected to the absence of certain evidence which was afterwards supplied, so that any possible error in the ruling was effectually cured. Bartholomew v. Lyon, 67 Barb., 86; Barrick v. Austin, 21 id., 241; S. & S. P. R. Co. v. Thatcher, 11 N. Y., 102; Colegrove v. H. & N. H. R. R. Cos., 6 Duer, 382.

The defendant recognized the validity of the plaintiff’s claim by paying $200 on account thereof before suit brought, and the-litigation concerned $800, the balance due. Upon the conclusion of the proofs the trial judge sent'the case to the jury under a clear and concise charge, whereby he instructed them that if they found that the decedent in her application for membership made any false statement or representation regarding her then state of health, or. if she was afflicted with disease at that time, they should find for the defendant.' The burden of proving the breach of warranty pleaded was on the defendant, and the submission of the question to the jury was put as strongly in favor of the defendant as it could expect or language make it. The jury found that-there was no misrepresentation, and that the decedent was not in ill health when she joined the defendant’s order, and found a verdict in favor of the plaintiff for the balance due with interest.

We find no error, and the judgment and order denying the motion for a new trial must be affirmed, with costs.

Sedgwick, Gh. J., concurs.


text:
    Leroy M. Lyon, Pl’ff, v. Halsey Fitch, Impl’d, Def’t.

      (New York Superior Court, General Term,

      Filed May 2, 1892.)

    1. Bills and notes—Bona fide holder.
    A transferee of a note who. simply gives credit for the amount thereof’ on account does not become a bona fide holder for value, but takes the note subject to all the equities existing against it.
    2. Same—Partnership endorsement.
    A partner has no more right than a mere stranger to endorse paper in the partnership name in his own individual business or for the accommodation of others. Such paper can only be enforced against the partner making or endorsing it, although the proceeds may have been used for" firm purposes.
    3. Same—Evidence.
    In an action upon such a note against the firavit is not error to exclude questions put to the partner who made the endorsement as to whether the giving of the note was of any benefit to the firm, as such questions did not call for a fact, but only for the witness’ opinion.
    4. Partnership—Admissions.
    Admissions made by one of a number of persons sought to be charged as partners cannot be used against the others to prove the partnership.
    The trial judge dismissed the plaintiff’s complaint, and directed that the exceptions be heard in the first instance at general term. The plaintiff moves for a new trial on the exceptions-taken.

      E. S. Clinch, for pl’ff; Harriman & Fessenden, for def’t.
   McAdam, J.

The action is on a $4,000 note made May 1,. 1889, by the defendant Whitney to his own order, payable thirteen months after date. Whitney indorsed upon the note first his individual name, and next that of Fitch & Whitney, a firm of which he was a member, and delivered the note to one Hills, who thereafter transferred it to the plaintiff. The original consideration for the note was moneys loaned by Hills to Whitney, individually, long before the firm of Fitch & Whitney was formed. The plaintiff received the note from Hills before maturity and gave him credit on account for the amount of it. The plaintiff' parted with nothing on the faith of the paper, so that he did not become a Iona fide holder thereof for value, within the rule as-established in this state. Coddington v. Bay, 20 Johns., 637; Stalker v. McDonald, 6 Hill, 93; Farrington v. Frankfort Bk., 24 Barb., 555; Moore v. Ryder, 65 N. Y., 438, and other cases collated, in 4 Lawson’s Rights and Remedies, § 1581. He simply succeeded to the rights of Hills, subject to all the equities existing between him and the defendant. Hills could have maintained no action against Fitch, for he knew the note and the endorsement had nothing whatever to do with the firm business of Fitch & Whitney, and the plaintiff stands in no better position.

Each partner is the agent of the partnership, as to all matters within the scope of the partnership business, and can bind the firm by making, endorsing and accepting bills and notes in such business ; but he has no more authority than a mere stranger to execute such paper in his own individual business, or for the accommodation of others. F. & M. Bk. v. Butchers’ & D. Bk., 16 N. Y., 135. Such note can be enforced only against the partner making it, and the fact that the proceeds may have been used for firm purposes does not render the non-assenting partner liable on the note. Union Bk. v. Underhill, 21 Hun, 178. Hills knew that the endorsement of Fitch & Whitney was not-given for a partnership debt, or in the partnership business, but was written by Whitney, one of the firm, in a matter not relating to the firm’s business, but to a private transaction of his own, and it did not bind Fitch, his copartner. Fielden v. Lahens, 9 Bosw., 445; S. C. 2 Abb. Ct. App. Dec., Ill; 6 Abb., N. S., 341; St. Nicholas N. Bk. v. Savery, 45 Superior Ct., 97.

Since every partner has prima facie equal power, a note signed by the firm name, though made by a single partner, is presumably a firm note, Whitaker v. Brown, 16 Wench, 507, and so with a firm endorsement. Moorehead v. Gilmore, 77 Pa. St., 118. But when it appeared, as it did here, that the note was not endorsed in the course of the partnership business, but for the benefit of Whitney, and that this fact was known to Hills, it was then incumbent on his transferee to show that Fitch as well as Whitney had assented to the undertaking. It was his duty on that state of facts to show affirmatively that Fitch was a party to the contract. Wilson v. Williams, 14 Wend., 147; Vallett v. Parker, 6 id., 615; Austin v. Vandermark, 4 Hill, 259. His assent must be proved, and will not be implied or presumed. Mercein v. Andrus, 10 Wend., 461.

The exception to the rule exists only in favor of a bona fide holder for value without notice, First N. Bk. v. Morgan, 73 N. Y., 593; Johnson v. Lee, 30 St. Rep., 393; for the giving of a mote in the partnership name is a virtual representation that it is given in the partnership business, and if negotiable this representation is deemed in law to have been made to every bona fide holder of the note, and the firm as to him is estopped from denying the authority of the partner to issue the instrument. F. & M. Bk. v. B. & D. Bk., 16 N. Y., 135; Griswold v. Haven, 25 id., 602. Another exception is to be found in Steuben Co. Bk. v. Alberger, 101 N. Y., 202, where a member of a firm, who had -charge of its financial business, took up firm notes by giving in •exchange therefor notes of a third person, endorsed by him in the firm name, which endorsement was without the knowledge of the partner; and the court held that the endorsement was within the authority of the partner making it, and that the firm was liable thereon. This upon the ground that the notes sued upon were actually used to retire obligations of the firm, and no limitation was placed upon the power of the financial partner to provide funds for such a purpose.

There was no merit in the plaintiff’s case, and his complaint was properly dismissed. The exceptions taken are without force. The questions put for the purpose of proving a partnership by the admissions of Whitney, one of the partners, were properly excluded, for the admissions made by one of a number of persons sought to be-charged as partners cannot be used against the others. Drennen v. House, 41 Pa. St., 30; Currier v. Silloway, 1 Allen, 19. Nothing short of the separate admissions of each is competent to establish a partnership between them. Field v. Tenney, 47 N. H., 518; Bryer v. Weston, 16 Me., 261; Pleasants v. Pant, 22 Wall., 116; McPherson v. Rathbone, 7 Wend., 216; Robins v. Warde, 111 Mass., 244; Donley v. Hall, 5 Bush, 549. The effort to prove that Hills relied on the firm endorsement was abortive, for he knew it did not relate to a partnership transaction. The questions put to Whitney, as to-whether the giving of the note was of any- benefit to the firm, were also properly excluded. They were not calculated to prove a fact, but to elicit the opinion of the witness, founded on the theory that if he had paid his own debt from the assets of the firm it would have depleted its capital to that extent, and hence the firm was benefited by adopting the course he pursued. The evidence rejected would not have affected the result, and the rule is that a new trial will not be granted where the plaintiff has been non-suited, although there was some evidence to establish the case, if the court is satisfied that the evidence, as well that adduced as that offered and rejected, was not sufficient to warrant a verdict in favor of the plaintiff. Wilson v. Williams, 14 Wend., 147. It follows that -the exceptions must be overruled, the motion for a new trial denied, and the defendant permitted to enter judgment on the non-suit, with costs.

Freedman, J., concurs.


author: Osborne, J.

text:
    Harrie Bulkley, Resp’t, v. Edmund Kimball, Impl’d, App’lt.

      (City Court of Brooklyn, General Term,

      Filed June 27, 1892.)

    Mechanic’s lien—Notice.
    A statement in a notice of lien that “all the work and materials for which the claim is made has been actually performed or furnished," is sufficient, where the claim is only made for the work actually performed ; it is only where the claim includes work and material tobe furnished, that the notice is required to state how much of the work and material has been, performed and furnished, or remains unperformed or unfurnished.
    Appeal from judgment of special term in favor of plaintiff,,
    Action to foreclose a mechanic’s lien.

      Phillips & Avery, for resp’t; Peck & Field, for app’lt.
   Osborne, J.

Plaintiff brought this -action to foreclose a mechanic’s lien filed, by him against certain lands and the buildings thereon on the corner of Lewis and Greene avenues in this city, .-and also to have a certain conveyance of said premises from the -defendant Kimball to the defendant Spratt declared void, as made without consideration and with intent to cheat and defraud plaintiff and others who had performed labor and furnished materials on said buildings. On the trial, plaintiff obtained judg.ment setting aside said conveyance, and judgment of foreclosure and sale, under the notice of lien filed by him, for the sum of fourteen hundred dollars. Defendant Kimball alone defended on the trial of this action, and he now appeals from the judgment entered in favor of plaintiff, and he urges various grounds for the reversal of said judgment, which we shall proceed to con.sider.

_ The evidence shows that plaintiff contracted, in writing, to furnish the material and complete the mason work on certain unfinished buildings for the total sum of eight thousand dollars, payable in instalments as the work progressed. The learned trial ;judge found that plaintiff had completed sufficient work to entitle him to the payment of the first instalment of seven hundred and ■fifty dollars, the second instalment of nine hundred dollars, and that he had also completed and furnished two-thirds of the work .and material necessary to entitle him to the third payment of ■eighteen hundred dollars, to wit, twelve hundred dollars; that defendant had only paid plaintiff the sum of fourteen hundred and fifty dollars, and that plaintiff was justified, in refusing to go on .and complete the contract by reason of defendant’s failure to pay :a balance of two hundred dollars due on the second instalment. The evidence seems to us to justify and support the findings of the learned trial judge as to these matters, and that there was due to plaintiff a balance of fourteen hundred dollars.

_ We are also of the opinion that the evidence is amply suffi■cient to sustain the findings of the learned trial judge that plaintiff had performed his part of the contract, and that the conveyance from Kimball to Spratt was without consideration, and was made with intent to hinder, delay and defraud plaintiff and other creditors of Kimball.

The learned counsel for the appellant contends that the notice -of lien was fatally defective, in that it contained no statement of the work performed and unperformed, as required by § 4 of the . lien law. The notice of the lien filed by the plaintiff expressly ¡stated that all the work and materials for which the claim is made has been actually performed or furnished.” We think that this was a sufficient statement of- plaintiff’s claim in the case before us. The lien law permits a party to file a notice of lien not only for work and materials actually performed and furnished, but also for materials to be furnished. In such a case as that the statute provides that the notice must prescribe whether all the work for which the claim is made has been actually performed or furnished, and, if not, how much of it.” Here, as before stated, plaintiff only claimed a lien for work and material performed.- and furnished, and alleged that it “ had been actually performed or furnished.”

Plaintiff had a right to file a notice, if he had chosen so to do, for the balance'of $8,000, the amount of his contract; if he had done so, then under the provisions of § 4 he would have been obliged to state how much of his work remained unperformed. The case of Foster v. Schneider, 19 St. Rep., 449, cited by appellant, has no application to the present case. There, the lienor, • having a contract to do the entire plumbing work of three houses for $2,400, filed liens for the whole amount of her contract, although the work had not been completed, and she failed to state in her notice of lien how much of the work remained unfinished, and it was under those circumstances that the court held that the notice failed to comply with the directions of the statute.

The notice of lien herein was filed August 5, 1890 ; the complaint was served on the defendant, Kimball, September 8, 1890. Thereafter, and on October 3,1890, an order was made by the .supreme court discharging plaintiff’s lien on the ground that the owners had given a bond, under § 24 of the lien law, for the payment of any judgment that might be rendered in proceedings to foreclose said lien.

The learned counsel for the appellant now contends that the lien having been thus discharged, the judgment entered herein for a foreclosure and sale of the premises is void, and should be set aside. We have grave doubts as to whether the order to discharge the lien was properly made. Section 24 of the lien law, subd. 6, after prescribing the nature and form of the bond to be given to discharge a lien, provides that a copy of the' bond, with a notice of the justification of the sureties, must be served on the claimant or his attorney, and that “ upon the approval of said bond by the court or a judge thereof, an order ■discharging such lien may be made.” While the bond given ■appears in the printed case, there is nothing to show the service •of a copy of it on the claimant with a notice of justification, or that the bond was ever approved.

Passing this point, however, it is to be noted that the order ■discharging the bond' was made after Kimball had served his answer to the complaint praying, inter alla, for a foreclosure and sale of the premises. Defendant might have applied for leave to serve a supplemental answer setting up the discharge of the lien, but he failed to do so. Neither was any request submitted by defendant to the learned trial judge requesting him to find that the lien had been discharged by filing a bond.

We think that the better practice would have been, on its being shown that the lien had been discharged by the filing of a bond, to have so rendered judgment as to protect the rights of the plaintiff under the somewhat peculiar wording of the condition of the bond as required by the statute. The learned counsel for the respondent consented, on the argument of this appeal, that the judgment should be so modified.

We are accordingly of the opinion that the judgment should be so modified as to strike out of .the judgment the provision for a sale of the premises, and to preserve the plaintiff’s rights, as determined by the learned trial judge, against defendant and the sureties on the bond, and, as so modified, should be affirmed, with costs. Order modifying judgment to be settled on two days notice before Judge Osborne.

Clement, Ch. J., concurs.


author: Clement, Ch. J.

text:
    James M. Johnson et al., App’lts, v. Samuel F. Cowdrey, Impl’d, Resp’t.

      (City Court of Brooklyn, General Term,

      Filed June 27, 1892.)

    Marriage—Evidence—Private marriage record.
    A private record of marriages kept by a minister who has since died is admissible in corroboration of other proofs of a marriage.
    Appeal from judgment dismissing the complaint.
    The action is in ejectment. The plaintiff made title by the conveyance to him by the registrar of arrears of the city of Brooklyn pursuant to a sale for the unpaid general taxes of 1885 and 1886.
    The sale was on July 11, 1888. Notice thereof was served on all who could lay claim to title or interest, excepting the state. The defendant Cowdrey became the grantee and went into possession of the premises after the sale, namely, on October 14, 1889.
    The history of Cowdrey’s alleged title is in brief this: Paul Pontau owned the land; he mortgaged it for $3,300 in 1857; died April 12, 1865, leaving a will devising it to his wife Nannette for life, remainder in fee to his adopted son Anthony; Anthony, however, died before he died; so the legislature by an act, chapter 558 of the Laws of 1871, vested the fee in the widow; she made a will which at the time of her death (June 6, 1878) vested the title in her stepson James M. Johnson, if it still subsisted as a will'; but she (it is claimed) had married one Harrison-after making such will, and by this fact the will was revoked under the statute, so that she died intestate, and the title escheated to-.the state, she leaving no heirs, but the stepson entered into possession. After her death the said mortgage by Paul Pontau was foreclosed (on J une 12, 1880) against several fictitious names by action, neither the state nor the stepson being made a party; and from the sale thereunder the chain runs down to defendant Cowdrey, his predecessors being Crane, Bates and Deinike. The said will of Nannette Johnson having been probated in Charleston, S. C., was proved and recorded in the Kings county surrogate’s court on July 20, 1880.
    The trial judge found that the said Nannette Johnson did marry Harrison, and that therefore her will was revoked, and the state became the owner; and decided that the plaintiff got no title by the deed of the registrar of arrears for the reason that lands of the state cannot be sold for taxes.

      W. J. Gaynor and Ira Leo Bamberger, for app’lts ; S. F., F. H. & Harry Cowdrey, for resp’t.
   Clement, Ch. J.

The court on the trial of this action, admitted in evidence the private record kept by Rev. Jacob Legare, pastor of the Morris Street Baptist Church in Charleston, South Carolina,- showing a marriage between James Harrison and Hannette Johnson on March 18, 1873. The entry appeared in a book kept by Mr. Legare, and under the heading: ‘‘Marriage Becord; marriage of church members and others,” which book was produced on the argument of this appeal, and exhibited to the court. The record was proven to be in the handwriting of Mr. Legare and the marriages were entered in consecutive order. It was not offered as, or claimed to be, a church record, but simply as set forth in the heading. Mr. Legare died October 6, 1885, and the book had thereafter been in the custody of his widow who was a witness on the trial.

There is other testimony tending to show that James Harrison and Nannette Johnson were married by Bev. Mr. Legare at or about the date set forth in the memorandum, and showing that they lived together in Charleston as husband and wife for about five years after such date, when Mrs. Harrison died. The record was offered in corroboration of the other proofs of marriage in the case.

We are of opinion that the book was properly admittted in evidence. It was not offered as a church record, and did not purport to be such, and therefore the authorities cited by the learned counsel for the appellant do not apply; neither is the case, Blackburn v. Crawfords, 3 Wall., 191, cited by the respondent, in point. The book was properly admitted as a private writing kept by a professional man in the usual course of his vocation. Proof was made that the entries were in the handwriting of Mr. Legare, that it was a record kept of marriages at which he had officiated, and that he was dead. In the case of Bradford v. Bradford, 51 N. Y., 669, cited by appellant, a record kept in a Unitarian Church in Balia Car, Ireland, was produced by the pastor, Mr. Getty, who did not know the parties, and there was no proof who made the entry, as would seem from reading the printed case, and the court of appeals held that the record was properly rejected. It was offered as a church record, and not a private memorandum kept by a deceased clergyman. The book offered in the case before us, in connection with the other facts proven tending to show a ceremonial marriage, was admissible in corroboration of such evidence. Many cases could be cited which seem directly in point, where writings made by parties since deceased have been so admitted; the entry of a baptism by a clergyman as evidence of such baptism, Kennedy v. Doyle, 10 Allen, 161, the books of a physician to prove an account, Augusta v. Windsor, 19 Maine, 317, the memorandum of a bank runner or messenger, Welsh v. Barrett, 15 Mass., 381, the same of a teller of a bank, Sheldon v. Benham, 4 Hill, 131, the same of a cashier, Nichols v. Goldsmith, 7 Wend., 162; the entry of an attorney in his register, Fisher v. Mayor, 67 N. Y., 73; Leland v. Cameron, 31 id., 115; Patteshall v. Turford, 3 B. & Ad., 890, books of account, Gale v. Norris, 2 McLean, 471, books of a notary. Nicholls v. Webb, 8 Wheat., 326; Halliday v. Martinet, 20 Johns., 168.

In the case of Fisher v. Mayor, 67 N. Y., 73, Judge Andrews says, “The facts and circumstances proven, independently of the-entry, rendered it probable that an order of confirmation was made, and, in connection herewith, the entry of the corporation counsel was, after his death, admissible secondary evidence of the fact." So in this case, the facts and circumstances proven independently of the entry rendered it probable that a marriage ceremony had been performed, and the record of the minister was, after his death, secondary evidence of the fact. Judge Gray wrote as follows, in the case of Kennedy v. Doyle, 10 Allen, 168: “An entry made in the performance of a religious duty is certainly of no less-value than one made by a clerk, messenger or notary, an attorney or solicitor, or a physician in the course of his secular occupation.” In no authority does it appear that the court placed its. ruling on the ground that the writing was ancient. In the case of Hart v. Wilson, 2 Wend., 513, a memorandum of a deceased notary was admitted after the lapse of only ten years from the date when it was made.

The judgment appealed from must be affirmed, with costs.

Osborne, J., concurs.


text:
    Matthias Lehn, Resp’t, v. The City of Brooklyn, App’lt.

      (City Court of Brooklyn, General Term,

      Filed June 27, 1892.)

    Municipal coepobations—Negligence—Defective sidewalks.
    A municipal corporation which permits a plank walk which has been, used by the public for eight years to become out of repair and in a condition liable to injure a foot traveler is responsible, where it had notice of the defects, for injuries caused thereby, although such walk was not laid, down by the corporation.
    Appeal from judgment in favor of plaintiff, entered - upon verdict and from order denying motion for a new trial.
    Action for negligence. The plaintiff sued for damages for personal injuries caused by a fall in a street.
    The plaintiff lived in Fifth avenue within a few doors of Sixth street.
    The sidewalk of Sixth street from Fifth to Sixth avenues was flagged with blue stone for about eighty-five feet; commencing at-Fifth avenue, there were some vacant lots for about 120 feet, in front of which the sidewalk had never been flagged. Some of the property owners in the neighborhood had put down planks as a sort of continuation of the flagged sidewalk. The planks were laid on the ground, were about an inch and a quarter thick, and. they had here and there rotted off at the ends, but they had not. worn off over an inch and a half from the dead level. On the-evening of November 4th, about eight o’clock, there was a bonfire in that neighborhood, and the plaintiff missed his truck, which had stood in front of his door. He rushed out of the house hat-less, in search of his wagon. He hurried around the corner into-Sixth street, and in passing along Sixth street over the planks of the walk he fell and was injured. There were no eye witnesses, of the accident. The learned judge summarized his account as follows : “ At a certain point he stepped where two boards, as I understand it, came together, and his foot broke through, going into a hole below the boards.”

      Klein & Rendich, for resp’t; Almet F. Jenks, for appl’t.
   Clement, Ch. J.

The verdict of the jury in this case is conclusive that the defendant negligently permitted and allowed a plank walk to remain on the sidewalk of Sixth street in this city, after the same was decayed and in a dangerous condition; that the plaintiff, while using the walk and exercising ordinary care, stepped where the boards came together, and broke through into a hole; that the defendant had ample notice of its dangerous condition, and had neglected to repair or remove the same, and that the plaintiff sustained severe injuries as the result of his fall.

On such a state of facts, the municipality is clearly liable within the authorities. Clemence v. City of Auburn, 66 N. Y., 334; Higgins v. Village of Glens Falls, 33 St. Rep., Ill; affirmed in court of appeals, 124 N. Y., 666; 37 St. Rep., 964; Saulsbury v. Ithaca, 94 N. Y., 27, 30. The defendant is responsible, because it permitted a plank walk which had been used by the public for eight years to become out of repair and in a condition liable to injure a foot traveller on the street, bfo question arises herein of a failure of the corporation to exercise its discretionary or quasi judicial powers, and the request to charge, based upon the case of Harrigan v. Brooklyn, 42 St. Rep., 625, was properly refused. The duty of the city was as absolute to prevent an accident on the plank walk as upon a sidewalk which had been flagged by the defendant. The liability was by reason of a dangerous trap in the traveled way, and it was the ministerial duty of the city to abate it after notice.

The exemption clause in the charter does not apply to this case, for the reasons set forth in the case of Bieling, 120 N. Y., 98; 30 St. Rep., 811, and the judgment and order denying new trial must be affirmed, with costs.

Osborne, J., concurs.


text:
    John Grafton, App’lt, v. The Union Ferry Co. of Brooklyn, Resp’t.

      (City Court of Brooklyn, General Term,

      Filed June 27, 1892.)

    Abatement and bevtvor—Corporations—Torts.
    Pending action against a corporation for injuries caused by the carelessness and negligence of its servants, the charter of the corporation expired by limitation. Held, that the action could not be revived against the directors as trustees; that the plaintiff could not be considered a creditor within the meaning of the statute.
    Appeal from order denying motion to continue the action against the directors of the defendant in office at the time of its dissolution.

      Backus & Manne, for app’lt; F. A. Ward, for resp’t.

       Affirming 40 St. Rep., 137.

   Osborne, J.

In March, 1890, plaintiff brought this action to recover damages for injures alleged to have been sustained by him through the negligence of defendant’s servants while a pas-" senger on one of defendant’s ferries. The answer of the defendant denied the allegations of the complaint, alleged that plaintiff was a trespasser, and that any injuries he sustained were caused by his own negligence.

The defendant was originally organized on November 9, 1854, under the provisions of chap. 135 of the Laws of 1853, for a period of eighteen years. Chapter 937 of the Laws of 1867 provided that any corporation theretofore formed might extend its term of existence for a period not exceeding- the term for which such corporation was organized in the first instance. Under the provisions of this act the defendant extended its term of existence for a further period of eighteen years, which period expired on November 9, 1890, and thereupon the charter of the defendant expired and the company became extinct.

In February, 1891, plaintiff made a motion to continue this action against the persons who were directors of the defendant at the time its charter expired, in their capacity as trustees of the stockholders and creditors of the defendants. This motion was denied, and plaintiff appeals from the order denying said motion.

Title 3, chap. 18, part 1 of the Revised Statutes (p. 600, m. p.) provides inter alla as follows:

See. 9. Upon the dissolution of any corporation created, or to be created, and unless other persons shall be appointed by the legislature or by some court of competent authority, the directors or managers of the affairs of such corporation at the time of its dissolution, by whatever name they may be known in law, shall be the trustees of the creditors and stockholders of the corporation dissolved, and shall have full power to settle the affairs of the corporation, collect and pay the outstanding debts, and divide among the stockholders the moneys and other property that shall remain after the payment of debts and necessary expenses.
Sec. 10. The persons so constituted trustees shall have authority to sue for and recover the debts and property of the dissolved corporation, by the name of the trustees of such corporation, describing it by its corporate name, and shall be jointly and severally responsible to the creditors and stockholders of such corporation to the extent of its property and effects that shall come into their hands.”

These provisions were adopted from the revised laws.

By § 4 of chap. 295, Laws of 1832, it was also enacted that *“The court in which any suit or proceeding against a corporation which shall have been dissolved by the decree of the court of chancery or by the expiration of its charter, or otherwise, shall be pending at the time of such dissolution, shall have power, on the application of either party thereto, to make an order for the continuance of such suit or proceeding, and the same may thereafter be continued until final judgment or decree shall be had thereon, which shall have the like effect upon the rights of the parties as if such corporation had not been dissolved.”

Plaintiff’s application in this case would seem to be based upon the course of proceeding prescribed by this statute, and were it still in force, it would undoubtedly afford ample authority for the granting of plaintiff’s motion; but, unfortunately for his contention, this act was repealed by chap. 245 of Laws of 1880, and no substitute for it has ever been enacted.

At common law, originally all actions ex delicto abated on the death of the party by whom or to whom the wrong was done. The Revised Statutes, 3 R. S., 7th Ed., 2394 and 2395, §§ 1 and 2, provided for the continuance of certain actions for wrongs against the executors or administrators of a deceased wrong-doer; but actions on the case for injuries to the person of the plaintiff, with certain other enumerated causes of action, were expressly excepted therefrom.

If defendant was a natural person there could be no question but that the maxim of actio personalis moritur cum persona would apply, and that this action would abate. The learned counsel for the appellant, however, contends that, as the plaintiff’s claim has always been against the property of the defendant, and that as that property still exists, he should be entitled to prosecute any remedy that he may have against the property. This proposition, we think, cannot be sustained. On the death of an individual tort feasor, his property still exists in the hands of his executors or administrators, and it might with equal force be urged that the property of the deceased should be answerable for a claim ex delicto,, but such is not the law. There is, in our opinion, no distinction between the death of an individual and the dissolution of a corporation pendente lite. Sturges v. Vanderbilt, 73 N. Y., 384, 390. The same rules of law apply except so far as specially altered by statute to the motion to continue an action against the legal representatives of one as the other. Bank of Selma v. Colby, 21 Wall, 609; Greeley v. Smith, 3 Story, 658; May v. State Bank of N. C., 2 Robinson, 56. But even if this were not so, it is a well-settled rule of the common law that the dissolution of a corporation puts an end to an action pending against it McCulloch v. Norwood, 58 N. Y., 562.

Plaintiff being therefore remediless at common law, the only question left for us to determine is whether there is any statute which has so far altered or modified the common law as to entitle him to the relief that he seeks. The above quoted sections 9 and 10 are the only provisions of the Revised Statutes relating to the question involved. They constitute the directors of the defendant, in office at the time of its dissolution, trustees of the creditors and stockholders of the defendant, with power to settle the affairs of the defendant, pay outstanding debts and divide the residuum among the stockholders after the payment of debts and necessary expenses. Power is also given to sue for and recover the debts and property of the defendant.

The duties devolving on the trustees are thus fully set forth, and to them can be added no other, or different or additional duties than those prescribed by the statute; they are made trustees of but two classes of persons, to whom alone their allegiance is due, and to whom they are accountable; to wit, creditors and stockholders. Plaintiff not claiming to be a stockholder, can he obtain the benefit of the statute on the ground that he is a creditor of the defendant? We think not; indeed the learned counsel for the appellant very candidly concedes in his brief that a party who has an action pending for injuries to the person cannot be considered a creditor in the legal definition of that word. The cases are numerous, holding that liability for tort is not a debt Heacock v. Sherman, 14 Wend., 58; Crouch v. Cridley, 6 Hill, 250; Kellogg v. Schuyler, 2 Den., 73; Esmond v. Bullard, 16 Hun, 65.

It is however sought to bring the plaintiff within the class of persons who might be designated as creditors on the theory that defendant contracted with him as an alleged passenger to carry him safely, and that his present claim is for damages springing from a breach of such contract. We think the answer to that suggestion is that in the complaint herein no contract .is alleged, but damages are claimed solely for the carelessness and negligence of defendant’s servants by closing a gate upon him, and the action is grounded in tort. Cregin v. Brooklyn C. T. R. R. Co., 75 N. Y., 193.

It seems to us, therefore, that the present application of the plaintiff cannot be sustained, as it is without any statutory provision to support it, and the common law is opposed to it

In arriving at this conclusion, we have not been unmindful of the fact that a similar application in another action pending in the supreme court has been granted, after careful consideration, by one of its most learned and painstaking judges, and that his decision has been affirmed by the general term of the second department, Mr. Justice Dykman dissenting. Hepworth v. Union Ferry Co., 41 St. Rep., 783. We have carefully gone over the opinion of the special term judge, and the prevailing opinion of the general term, and considered the reasons advanced by them for reaching the conclusions at which they have arrived, but we find ourselves compelled to differ from them.

The order appealed from should be affirméd, with costs.

Yan Wyck, J., concurs.