text:
    Emily Cochran, Resp’t, v. Oliver C. Smith, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Deed—Extent oe grant.
    The employment of the words “by” “upon” or “along” a road manifests an intention to include the road in the grant to the center line.
    2. Same—Construction.
    While it is the province of the court to construe written instruments, it is yet the province of the jury to determine, from all the evidence, boundary lines of land in controversy in legal proceedings.
    Appeal by defendant from a judgment entered upon a verdict directed by the court in favor of plaintiff.

      Timothy M. Griffing, for app’lt; Wiknoi M. Smith3 for resp’t
   Dykman, J.

This is an appeal by the defendant from a judgment entered upon a verdict directed by the court in favor of the plaintiff. The action is for trespass on land, and its decision requires the location of the boundary line between the lands of the parties which originally belonged to Sarah Smith, the mother of the plaintiff and defendant.

In June, 1883, Sarah Smith conveyed to the defendant the land which he now claims, bounded northerly by Bayport highway four rods and sixteen links, westerly by the lands of Sarah Smith, the grantor, twenty rods, southerly by her lands also, eight rods and five links, and easterly by land of Edgar Gillette twenty rods and ten links, containing about one acre of land. Locust boundary stakes were placed at the comer of the premises so conveyed.

In November, 1885, Sarah Smith conveyed to the plaintiff a parcel of land of which the boundaries will be given hereinafter.

Our task is the location of the boundary line between these two parcels of land, and that "location depends upon the true interpretation of the two deeds. Although such is the general rule, yet there are some aids to be invoked in the construction of these instruments.

The land conveyed to the plaintiff fronts upon two roads, Bay-port highway is on the north and Fairview avenue is on the west, and they form a junction at the northwest corner of her lot.

The Bayport highway also lies north of the land of the defendant, which is east of the land of the' plaintiff. The land of the defendant is bounded on the east by land of Edward Gillette, so that the two parcels lie between Fairview avenue on the west, Bayport road on the north, the land of Gillette on the east, and other land of Sarah Smith on the south. The east and south lines are undisputed. It is the center line between the two which is in dispute.

It was the design of the grantor of these parties to carve out between those lines two parcels which should each contain one acre of land. We must now divide the land as the grantor intended to do and that requires the location of the center line. To fix this line it will be necessary to determine whether the conveyance to the plaintiff included any portion of Fairview avenue, and that question requires some examination. In approaching it we shall find it useful to observe some well recognized presumptions. In the first place it is an established inference of law that the proprietors of land adjoining a public highway are the owners of the fee thereof. Wager v. Troy Union Railroad Co., 25 N. Y., 526. Also that a conveyance of land bounded by a highway carries with it the fee to the center thereof as part of the grant. Bissell v. R. R. Co., 23 N. Y., 61. Of course such presumption mav be surmounted by evidence.

When a road or an unnavigable stream of running water is used as a boundary in a grant, the title will pass to the center of the road or stream unless there be something in the grant to indicate a contrary design.

A road is regarded as a line and its center in such cases is the true boundary in the absence of other indications. Mott v. Mott, 68 N. Y., 262; White's Bank v. Nichols, 64 id., 71.

It will be in order now to consider the language employed in describing the land conveyed to the plaintiff,and preliminarily we may state that the location of the line between these parties is dependent upon the westerly line of the plaintiff’s land. If we can locate that westerly line the problem is solved. The language of the description in the plaintiff's deed is this: — Commencing at the northwest corner thereof (i. e. the land conveyed) at the junction of Fairview avenue with the main road running through Bayport, thence running southerly by Fairview avenue twenty rods, thence running easterly eight rods. to lands of Oliver C. Smith, the defendant, thence running northerly by land of Oliver C. Smith twenty rods to the main road running through Bayport, thence running westerly by last mentioned road eight rods to the place of beginning. Containing just one acre of land.

So it is that the place of beginning is the junction of the two 'roads and the line runs “by” Fairview avenue, then easterly, then northerly “ to the main road,” then westerly “ by last mentioned road,” and the employment of the words “by,” “upon” or along a road manifests an intention to include the road in the grant to the centre line. Mott v. Mott, supra.

Here the place of beginning being the junction of Fairview avenue and the Bayport road, and the presumption being that the grantor of the plaintiff owned to the centre of both roads, the place of beginning is the point at the junction of the centre line of the two roads. Halloway v. Delano, 18 N.Y. Supp., 704; 45 St. Rep., 891. From that point the line runs southerly “ by the avenue and so in obedience to the rule we have stated it runs with the centre thereof, then returning when the Bayport road is reached the line runs “ by that road, and so by the centre line of the same. The language is plain and free from obscurity, and our conclusion from it is in accordance with all the adjudicated cases and the elementary writers. This result is strengthened by some undisputed facts.

When the plaintiff’s lot was measured the measurements commenced in the middle of Fairview avenue at the Horth end of his Westerly line and a bolt was driven in the ground at that spot

Again in the fall of 1890 the surveyor located the line now in dispute, in the presence and with the assent of the plaintiff. His survey commenced in the middle of Fairview avenue and gave the plaintiff one acre of land west of that line and gave the defendant all east of that line to the land of Gillette.

Again, if the centre of the avenue is taken as the plaintiff’s westerly line she will have just an acre of land west of the line claimed by the defendant, but if Fairview avenue be excluded from the competition then she will not have an acre west of the line claimed by her.

Moreover when the defendant received his deed and when the parties had no reason for misrepresentation, stakes and irons were placed at the corners of his property as he now claims it

Our conclusion is that the direction of a verdict for plaintiff was erroneous. While it is the province of the court to construe written instruments, it is yet the province of the jury to determine boundary lines of land in controversy in legal proceedings, from all the evidence.

In our view the evidence requires a verdict in favor of the defendant, but the question of fact must be left to the jury under proper instructions. The legal effect of the deed of conveyance and the evidence adduced by each party.

The judgment should be reversed and a new trial granted, with costs to abide the event.


source: Caselaw Access Project

author: Barnard, P. J.

license: Public Domain

text:
    Effie Redner, Resp’t, v. The Lehigh & Hudson Railway Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Negligence—Duty op railroad compart.
    It is the duty of the company to provide a safe place, at which passengers can embark upon and depart from its trains at such points as it receives or discharges passengers.
    Appeal from a judgment entered upon a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      John J. Beattie, for app’lt; John M. Gardner, for resp’t.
   Barnard, P. J.

The plaintiff was at the Hudson junction station waiting for a train of the defendant by which to be carried as a passenger to Warwick in Orange county. The station was a small one, but it was one for which the defendant sometimes sold tickets and at which if permitted passengers to get upon the train. The train was reached by a passenger who waited for the train at the room provided for them by a very narrow passage ,way of boards being only some three or four inches in width to the platform, alongside of which the defendant’s cars stood. The station was common to other roads besides the defendant’s road and while the plaintiff was proceeding to the defendant’s train some person, other than employes of defendant, suddenly turned and threw the plaintiff off the narrow step of board and severely injured her. The effect was not designed by the person who threw the plaintiff down, but the passageway was so narrow that the mere unintentional turning of a person was likely to have that effect, and it did so in this case. The obligation of the defendant was to provide a safe .place at which the passenger could embark upon and depart from the train at such points as the company received or discharged passengers. Hulbert v. N. Y. C. R. R., 40 N. Y., 145.

The questions of fact which were disputed have been found in favor of the plaintiff. The plaintiff was entirely free from any lack of care and caution on her part which, as matter of law, could be deemed contributory negligence on her part. She was proceeding in the way the defendant provided, and no reasonable anticipation could be made by her that a person in front of her going the same way would suddenly and without warning turn and throw her from this narrow passage.

The judgment and order denying new trial should therefore be affirmed, with costs.


text:
    Mary A. Morris, Resp’t, v. New York, Ontario & Western Railroad Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Evidence—Confidential.
    ■ What the regular and the consulting physician say in consultation, in the presence of the patient, is inadmissible.
    8" Same.
    The fact that they did not agree upon the disease will not permit the confidential relation between physician and patient to be rendered nugatory.
    Appeal from a judgment entered upon a verdict and from an order denying a motion for a new trial.

      William Vanamee, for app’lt; William F„ O’Neil, for resp’t.
   Barnard, P. J.

There is no uncertainty in the proof as to the defendant’s negligence causing the accident which injured the plaintiff, nor is there any doubt as to the fact that the plaintiff is free from all negligence, which contributed to her injury. She was a passenger on the defendant’s train and saw an approaching engine of the defendant’s coming upon the same track. She jumped from the car just before the crash of the collision and was hurt in her fall. The extent of the injury is disputed. The plaintiff states that she is thirty-three years of age; that before the accident she was a healthy, rugged woman, the mother of two children; one born after the accident. The injury was received the 16th of November, 1891, and up to the trial in June, 1898, she had been unable to do any work. In this statement of her injury, the plaintiff is supported by her husband. Proof was given tending to show a permanent injury of the spine, caused by the concussion from the fall, and that she was growing worse. There was proof given by the defendant tending to show that the plaintiff at and soon after the accident, said she was not hurt, and by those who saw her get off from the cars, that she did not fall, but landed upon her feet and ran across to a store. Proof was also given by the defendant tending to show that the plaintiff was not in good health before the accident.

The defendant sought to prove that the plaintiff was riding on a pass. Her brother was a brakeman on the train upon which plaintiff was traveling. She had no pass; had money to pay her fare, but no one asked her for it. She says that there was no arrangement whatever that she was to travel on a pass. She purchased no ticket, and referred the conductor to her brother George (the brakeman), and when she attempted to testify as to what her brother said about it on the day before, she was ■stopped. This proof is not sufficient to reverse a verdict of the jury based upon the fact that she had no pass and was a regular passenger.

The testimony of Dr. Dé Kay was properly rejected. He was. called in, professionally, as consulting physician. What either said in consultation in the presence of the plaintiff, is inadmissible. Renihan v. Dennin, 103 N. Y., 573; 4 St. Rep., 261.

They did not agree upon the disease and this fact will not permit the confidential relation between physician and patient to be rendered nugatory. The defendant asked the regular physician, Payne, if Dr. DeKay did not say the plaintiff’s injury was intercostal neuralgia, and he said he did. Ho case, for what is known as impeaching evidence, is made. The damages,' $3,500, are not excessive, if the jury believed the testimony of the plaintiff and her husband.

The judgment and order denying a new trial should be affirmed with costs.


text:
    In the Matter of the Application of the City of Brooklyn to Condemn Property and Franchises of The Long Island Water Supply Co.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    1. Condemnation—Repobt.
    Where the witnesses are not harmonious in their views, the report of the commissioners will be upheld, unless it is so clearly against the weight' of the body of evidence as to justify a reversal for that reason.
    2. Same.
    In such case, the award must be confirmed, unless an erroneous basis was adopted by the commissioners in their appraisal.
    3. Same—Wateb supply.
    The commissioners, in appraising the property and franchises of the Long Island Water Supply Co., cannot base their appraisal upon the exclusive right of such company to furnish water to the territory within the old town of New Lots.
    4. Same—Awabd.
    It is not obligatory upon a commission to appraise land taken for public use that an award shall be made greater than the mortgage on ■ the prop- . erty. ‘
    Appeal from an order refusing a confirmation of the report of' commissioners.

      Alexander & Green, for Mercantile Trust Company.
   Barnard, P. J.

The legislature, by chapter 737, Laws of 1873, and amendments thereto, authorized by a general act the formation of water companies in towns and villages within the-state. Under these Lawrs the Long Island Water Company was organized in 1881 to furnish water to the town of Hew Lots, which was then adjacent to the city of Brooklyn, but was not a part of it. By chapter 325, Laws of 1886, the legislature annexed the town to the city of Brooklyn, and in the annexation act provided that the city of Brooklyn should not distribute or furnish water for consumption or use within the territory of the annexed town or lay any pipes or mains for the distribution or supply of water therein until the expiration of the charter of the Water company or until the city should purchase the property rights of the water company. The charter was taken for the term of fifty years from the 17th of August, 1881. By chapter 481, Laws of 1892, the city of Brooklyn was permitted by law to acquire a title by condemnation to all the property of the Long Island Water Supply Company, consisting of the reservoir, machinery, water pipes and franchises for the public use. The act provided that a commissioner should be appointed to ascertain the just compensation to be made therefor. The commissioners were appointed in the manner provided for by the act, who have heard the testimony of the parties and have made their report This report was set aside by the special term, and this appeal presents the question whether or not the award gives just compensation for the property taken for the public use. The subject of the appraisal is an unusual one and the proof is very conflicting as to values. The case is one which easily falls within the settled principle that where the witnesses are not harmonious in their views the report of the commissioners will be upheld unless it is so clearly against the weight of the body of the evidence as to justify a reversal for that reason. This award must be affirmed unless an erroneous basis was adopted by the commissioners in their appraisal. The commissioners have made a statement of the rules which governed them and the important question is whether or not this rule was one which should not have been followed.

The commissioners state that their appraisal was not based upon the exclusive right of the Water Works Company to furnish water to the territory within the old town of New Lots. This was a correct view. The act 737 of 1873 gives no such exclusive right to a corporation formed under its provisions. The town made a contract with the Water Company, but this contract did not even require a distribution of water to all of the inhabitants of the town. There is over a hundred miles of streets, and the contract calls for only fifteen miles of pipes. The fact is not very material, but it will become important when the effect of the legislative restriction in the annexation act is considered. The Water Company had no exclusive right in the town by force of the town permission and the contract. Syracuse Water Company v. City of Syracuse, 116 N. Y., 167; 26 St. Rep., 364.

The restriction in the annexation act gave no additional power to the Water Company. It does not purport to do so. The restriction is to be considered with respect to the existing facts when it was inserted. The town Water Company existed and had made expenditures under its charter. The restriction was designed only to protect the Water Company from injurious competition until the city made it a just compensation for its property. The Water Company seeks to use this humane provision to confer an absolute right to supply the district of New Lots with water for the entire period of the chartered life of the company, and to have this exclusive right assessed as part of the franchise of the company. The commissioners of appraisal took the proper view of the restriction. It conferred no additional right and it could, at any time, be repealed, and no error of principle can be based upon, an expectation that a repeal of the restriction would be made, if its effect was to greatly increase the value of the franchise of the Water Company as it existed at the date of annexation. The Water Company was not bound to supply the district annexed, and the city was forbidden tp do so for a very long term of years. The legislature intended no such result, and the restriction is not to be so read. The city competition with the Water Company is stayed until it gets title to the Water Company’s title, such as it was before the annexation act was passed. This is the construction of the court of appeals in Ziegler v. Chapin, 126 N. Y., 342; 37 St. Rep., 490, on the effect of restriction.

The case does not hold that the value of the franchise was increased thereby and must be paid for by the city. The case of the Peo. v. OBrien, 111 N. Y., 1; 19 St. Rep., 173, holds no such doctrine. The right of the Water Company cannot be taken away, but what the right was which was to be paid for was not determined by that case and no such question was in it. It is not obligatory upon a commission to appraise lands taken for public use that an award shall be made greater than the mortgage on the property. The value only is to be assessed and the money will go where justice requires it to go and no further. Otherwise an excessive mortgage will prevent condemnation for public use. The evidence as to value is very full and, even if under strict rule of evidence something was improperly admitted or rejected, it did not affect the result.

The order refusing a confirmation of the report of the commissioners should be reversed, with costs and disbursements, and the motion to confirm be granted, without costs of that motion.


text:
    In the Matter of the Petition of John P. Adams, Commissioner, of Public Works.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    CONDEMMATIOK—PRIVATE STREET.
    The value of the fee of a private street in a great city, where the possibility or probability of its being closed is very remote, is merely nominal.
    Appeal from an order refusing to confirm the award of appraisers appointed to assess the value of land for public use.

      Bergen & Dyhman {James C. Bergen, of counsel), for resp’ts.
   Barnard, P. J.

Upon the application of John P. Adams, commissioner of public works, three appraisers were appointed to assess the value of “All the land lying between Third and Fourth avenues in Fifty-First street as the same is laid down on the commissioner’s map of the city of Brooklyn.” The land was the property of Thomas Hunt in his lifetime, and was needed for the public use. The commissioners of appraisal reported the value of the land to be six cénts. The court at special term refused to confirm the report upon the ground that damages were substantial, and this appeal brings up the question of the value for the purpose of condemnation to public use. The proof shows that the premises in question were known as Fifty-First street on a map made and filed by Thomas Hunt’s executors, and between Third and Fourth avenues. The map shows a certificate indorsed thereon by the executors that the streets and avenues designated therein were solely for the purpose of descriptions and references, and that there was no intention to dedicate the lands to public use as streets of the city, or to any public use. The executors sold lots on the street expressly stating in the deed that the conveyance was of the street up to the center line. The commissioner’s valuation was right. The grantees in the deed, each and every of them, own to the center of the street in front of the lots, with a right to have the entire street to remain open forever for their free passage. This would be their right over such parts of the street as were unconveyed by executors. The only difference between this condition of things and what would exist on a full dedication of the street is simply this: The owner and all the lot owners could "shut up the street; which they could not do on a, public street. This contingency is so remote in a great city that the appraisal commissioners did right in disregarding its probability, or even possibility. The street was made to be open, and always open after lots were sold on it, and the fee under a public highway is only nominal. Trustees, etc., v. Cowen, 4 Paige, 510; Bissell v. N. Y. Central R. Co., 23 N. Y., 61; Wiggins v. McCleary, 49 id., 346.

The order refusing to confirm award is therefore reversed, with costs and disbursements, and the report confirmed.


author: McAdam, J.

text:
    Lizzi Rettig, as Administratrix, etc., of George Rettig, Deceased, Resp’t, v. Fifth Avenue Transportation Co., Limited, App’lt.

      (New York Superior Court, General Term,

      Filed December 29, 1893.)

    1. Master and servant—Duty.
    The master must furnish.- suitable machinery, tools and appliances, and he must provide a safe place for his servant to work.
    2. Same.
    He cannot relieve himself from this obligation by delegation.
    3. Same—Risk.
    The servant does not stand on the same footing as the master as respects the matter of care in inspecting and investigating the risks to which he may be exposed.
    4,. Same.
    He will ordinarily be justified in obeying orders, without being chargeable with contributory negligence, or with the assumption of risk in so doing.
    5. Same.
    The rule that a servant takes the risk of the service, pre-supposes that the master has performed the duties of care and vigilance which the law casts upon him.
    6. Same.
    The duty of inspection is on the master.
    Same.
    The servant has an undoubted right to rely upon the superior knowledge of the master.

      8. Same.
    In an action for negligence the plaintiff is not bound to prove want of knowledge in the servant.
    9. Trial—Charge.
    In determining whether a single proposition in a charge is erroneous, it will be construed In connection with the context, and the whole charge, or so much of it as is connected with and tends to modify or explain the part claimed to be objectionable, will be considered.
    10. Same.
    Several rules in regard to requests to charge stated.
    11. Negligence—Surgical operation.
    Where the condition of the injured party necessitates a surgical operation, which is skillfully performed, though he dies by reason of the shock which follows, this does not shield the wrong-doer from liability, though the operation is the immediate cause of the death.
    Appeal by defendant from judgment entered on verdict of jury in favor of plaintiff and from order denying motion for new trial.

      Chas. Steele and O. De Gersdorff, for app’lt; Chas. SiecJcler, for resp’t.
   McAdam, J.

The action was brought under the statute to recover damages for the negligent acts of the defendant in causing injuries to one George Rettig, which resulted in his death. It appeared that the decedent, a stage cleaner in the employ of the defendant, was on August 26, 1890, engaged with one McKenna, a co-workman, in the stage stables, cleaning the stages of the defendant corporation, when Mr. Parker, the superintendent of the horse department, called upon the decedent and McKenna to open a large door for the admission of a stage just returned from a trip, for the purpose of changing the horses. The door was massive and heavy, and had been originally hung on three wheels placed on a bar that ran across the top of the door. Two of these wheels had disappeared, one after the other, until on the day of the accident there was but one wheel left to support and run the door.

In the performance of his duty as superintendent, Parker, a week prior to the accident, had notified the president, general manager, purchasing agent and foreman of the building, of the condition of the door, which was evidently unsafe and dangerous, so that the fact became known to the officers of the defendant, as well as to the superintendent. With' this knowledge, and without giving notice of the danger, the superintendent commanded the decedent and his fellow workmen to open the door. They obeyed the direction, and while endeavoring to perform the command, the sole remaining wheel broke, and the door fell upon the decedent, inflicting upon him injuries of so serious a character as to necessitate his removal to the Presbyterian Hospital, where he died on the 29th of January following.

The defendant undertook to show that the door fell because the decedent and his fellow workman used a wooden pole to pry it open. But the evidence shows that there was nothing unusual in the use of the pry, for the superintendent swears, “ I had given orders to use the pole, and it had been used ; I had it there for that purpose.” It was no part of the regular duty of the decedent or his fellow workman to open the door; they were employed as stage cleaners, and while subject to the Orders of the superintendent, were obliged to do nothing but clean the stages as they came in, except on occasions like the one in question, when they received special directions which they were obliged to obey. There was also an effort on the part of the defendant to show that the decedent had knowledge of the dangerous condition of the door, but the testimony offered on this subject proved nothing material in that regard. Indeed, the superintendent, in answer to a question by the court, testified that he would not swear that the decedent had ever opened the door before. The same witness testified that the decedent told him that “ if he had known ” or “ ought to have known ” that the door was in that state, he ought not to have gone near it. The evidence on this point failed to prove that the decedent had the knowledge the defendant undertook to impute to him, and the jury evidently believed that be had no such knowledge, for there was no'reason to suppose he had. Parker, the superintendent, was an alter ego representing the master in all matters pertaining to the running of the stable. Indeed, according to the evidence of the defendant’s witness Mc-Kenna, Parker was regarded by all concerned as the “ boss,” and the injuries complained of were occasioned by yielding obedience to his orders while engaged in the master’s service.

The ground of liability of the master to the servant is for subjecting him, through negligence, to risks greater than those which fairly and properly belong to the employment in which he is engaged. Thomp. on Keg., 970. A master is bound to take ordinary and reasonable care not to subject his servant to unreasonable or extraordinary dangers by sending him to work in dangerous buildings, or with dangerous tools or appliances. Id., 972.

The same rule has been applied, and with sound reason, where the person injured was ordered into a service of peculiar danger, such as he did not undertake to perform, by another servant, standing toward him in the relation of superior or vice-principal If he obeys such an order and is injured, he may recover damages, lb. 975. In Kranz v. R. R. Co., 123 N. Y., 17; 33 St. Rep., 46, the decedent was ordered to aid in cleaning certain water pipes, placed under ground at the defendant’s depot at Bay Ridge. A trench had been opened for that purpose by the section man and.laborers under his direction some hours before the decedent commenced work upon the pipes. That was a necessary step to furnish him a proper opportunity for the performance of his own duty. He entered the trench and began to disconnect the pipes, and while so engaged, the earth caved in upon him, and he died of suffocation. The court held that “ those who opened the trench were performing the master’s duty to the deceased in preparing a suitable place and opportunity for the labor of the intestate in the discharge of his duty * * * and when the master ordered the intestate to perform his work as a machinist in the trenches opened and prepared for him, he had a right to assume that the place had been made reasonably safe by the master through other competent servants employad by him." See also Pantzer v. Tilly Foster I. M. Co., 99 N. Y.. 368 ; 33 St. Rep., 416. In McGovern v. R. R. Co., 123 N. Y., 280, the master directed the servant to perform work at a place which proved dangerous, and the court held that where such danger may be foreseen and guarded against by the exercise of reasonable care, it is the master’s duty to exercise such care and adopt such precautions as will protect the servant.

The master is bound to know that his appliances are reasonably safe, unless the defect be one not discoverable by careful inspection or by the application of appropriate tests. Probst v. Delemater, 100 N. Y., 266. In the present case, express notice of the defects and of the dangerous condition of the door was given to the officers of the defendant corporation by its superintendent a week before the accident happened, and notwithstanding this, the servant was ordered into a place of danger by the superintendent, unapprised of the risk he was assuming. A clearer case of negligence could hardly be established.

Aside from the fact that Parker was an alter ego, it is a well settled principle that whenever the relation of master and servant exists, a special duty devolves upon the master to provide for the safety of his servant in many important respects. He must furnish suitable machinery, tools and appliances, and he must provide a safe place for his servant to work. Hough v. R. R. Co., 100 U.S. R., 213; R. R. Co. v. McDaniels, 107 id., 454; Rice v. King Phillip Mills, 144 Mass. R., 229 ; R. R. Co. v. Foy, 31 Kan., 586; Mitchell v. Robinson, 80 Ind., 281. That it is the law in this state that the master cannot relieve himself from this obligation by delegation will be seen by reference to the authorities. Pantzer v. Tilly Foster, I. M. Co., 99 N. Y., 368; Benzing v. Steinway, 101 id., 547; Cullen v. Norton, 126 id., 1; 36 St. Rep., 359; Ellis v. R. R. Co., 95 N. Y., 546; Slater v. Jewitt, 85 id. 61; Wood on M. and S., § 438. The same rule has been adopted in other states. Indiana Car Co. v. Parker, 100 Ind. R., 181; Killea v. Faxon, 124 Mass., 487; Babbitts v. R. R. Co., 38 Wis., 289. While the servant assumes the ordinary risks of his employment, and as a general rule such extraordinary risks as he may knowingly and voluntarily see fit to encounter, he does not stand on the same footing as the master, as respects the matter of care in inspecting and investigating the risks to which he may be exposed.' He has the right to presume that the master will do his duty in that respect; so that, when directed by proper authority to perform certain services, or to perform them in a certain place, he will ordinarily be justified in obeying orders, without being chargeable with contributory negligence, or with the assumption of risk in so doing. Cook v. R. R. Co.. 34 Minn., 45; see also 14 Am. & Eng. Encl. of L.. 843; Chicago Co. v. Ross, 112 U. S. R., 377; Cone v. R. R. Co., 81 N. Y., 206; Connolly v. Poillon, 41 Barb., 366; Miller v. R. R. Co., 12 Fed. R., 600; Stevens v. R. R. Co., 86 Mo., 241; McDermott v. R. R. Co., 87 id.. 285.

The application of these principles to the present contention required the trial judge to submit the questions of negligence and contributory negligence to the jury, and this he did by instructing the jury that in order to recover the plaintiff was bound to establish two propositions ; one, that the accident happened through neglect of the defendant, and the other, that it happened without any negligence on the part of the deceased contributing thereto. These propositions were reiterated, and at the request of the defendant’s counsel, the court charged the following propositions:

“ The plaintiff is bound to satisfy the jury by the preponderance of evidence, not only that the defendant’s, negligence caused the death of the deceased, but also that the deceased himself did not help in any way to cause the accident by his own carelessness.”

“ The plaintiff is bound to prove that the death of the deceased was caused by the accident.”

“The mere fact that the accident occurred and the deceased was injured does not establish any negligence on the part of the defendant."

“ The occurrence of the accident is not by itself evidence of negligence on the part of the defendant.”

“ The mere fact that the stable door which fell upon the deceased was out of repair does not by itself constitute any evidence of defendant’s nagligence."

“The master’s obligations to furnish reasonably safe appliances for his servant’s use is limited by a corresponding duty on the servant’s part to exercise reasonable care in their use.”

And that “if the jury believe the accident was occasioned not by the condition of the door, but by Rettig’s attempt to pry it open with a pole or lever, then the plaintiff cannot recover.”

And that “ if you believe that the door could have been safely opened by any one using reasonable care in the' operation, the plaintiff cannot recover.”

That “ the plaintiff can recover only the pecuniary damages occasioned to the deceased’s next of kin by his death.”

And that “Any pain and suffering of the deceased, or grief and bereavement of his"family, cannot be taken into account in estimating the damages to be recovered,”

And that “ Ho exemplary or punitive damages can be awarded in this action; they must be confined solely to the pecuniary loss resulting from the deceased’s death.”

This was certainly stating the law as favorably to the defendant as it had the right to demand.

The defendant went further, and requested the court to charge that,

VI. “If the jury believe that the deceased knew the door was out of repair, and continued to work with it, the plaintiff is not entitled to recover, and there must be a verdict for the defendant.”

VII. “Although the jury believe that the defendant knew about the condition of the door and did not have it repaired, the deceased by continuing in his employment assumed the risks of injury from the want of repair, and the plaintiff is not entitled to recover." .

YIII. “ The danger, if any, arising from the condition of the door was a plain and obvious one, and the deceased having used the door in that condition must be presumed to have assumed the risk of accident from that source, and the plaintiff, therefore, cannot recover."

XI. “If the jury believe that Rettig’s attempt to open the door by prying it with a pole or lever contributed to any extent whatever to cause the accident, the plaintiff cannot recover.”

XIIL “ The deceased had no right to resort to the use of the pole to pry open the door. If he could not open it in the ordinary way, he should not have attempted to open it at all, and in using a pole or pry for the purpose he assumed the risks of accident from such an attempt.”

These requests, numbered as above, were refused, and the exceptions taken to the refusal constitute the most serious objections urged by the defendant against the judgment as grounds for its reversal.

The rule is that in considering whether a single proposition contained in a charge is erroneous, it will be construed in connection with the context, and the whole charge, or so much of it as is connected with and tends to modify or explain the part claimed to be objectionable, will be considered. Baylies on New T., 183; Sperry v. Miller, 16 N. Y., 413; Caldwell v. N. J. Steamboat Co., 47 id., 282; Hickenbottom v. R. R. Co., 122 id., 91; 33 St. Rep., 312; Chellis v Chapman, 125 N. Y., 214; 35 St. Rep., 17. So understood, we will consider the requests seriatim.

The sixth request is founded on the erroneous assumption that there was evidence that the decedent knew the door was out of repair. The only evidence upon the subject was given by Parker, the superintendent, who first testified : “ I can’t swear that I remember that Rettig ever opened the door before,” and afterwards testified, “ I state now, from this paper, that I had seen Rettig open the door before.” He does not state when, nor does he undertake to say that Rettig ever knew of the dangerous condition into which it had fallen or that he ever told him, although he was careful to notify the officers of the corporation of the fact. Rettig had nothing to do with the door, his duties never called him there, but elsewhere, and he would have had nothing to do with it on the occasion when he met his injuries, if the superintendent had not specially commanded him to open it, and if he, like a faithful servant, had not obeyed the command. No duty of inspection devolved on Bettig. There was no evidence or inference from facts, on which the jury could have found or even implied knowledge on the part of Rettig. He evidently had no knowledge on the subject. The command by the superintendent, acting -in place of the master, was equivalent to an assurance that the door was all right, and it was so regarded. The superintendent saw the means taken to open the door, and offered no remonstrance or suggestion oí danger. The rule that a servant takes the risk of the services, presupposes that the master has performed the duties of care and vigilance which the law casts upon him; it only excuses where inj ury results to the servant from a hazard incident to the nature of the employment, not from a cause which the exercise of proper care and prudence on the part of the master would have foreseen and guarded against. Pantzar v. Tilly Foster I. M. Co., supra.

The onus of proving absence of contributory negligence was on the plaintiff, but she was not bound to prove want of knowledge in the decedent. The trial judge recognized the rule for he carefully charged the jury that the plaintiff could not recover if the decedent “ helped in any way to cause the accident.” There was evidently no contributory negligence—the decedent was negligently, not intentionally, lured to his death, and the civil responsibility for it is on the defendant.

The seventh request is founded on the same erroneous assumption, and was properly refused for the same reason.

The eighth request is founded on the erroneous assumption that the danger was “ a plain and obvious one,” when in truth it was one discoverable only by investigation, and the duty of inspection did not devolve on the decedent.

The ninth request assumed that the use of the pole was improper conduct on the part of the decedent, and charged him with the consequences of the accident dr part of them, ignoring the fact that Parker, the superintendent, had testified : “ I had

given orders to use the pole, and it had been used; I had it there for that purpose.” It was in effect asking the court to tell the jury to disregard the command given by the alter ego to the servant, which the latter had the right to assume was safe and proper, for the duty of inspection was on the master represented by him.

The thirteenth request was founded on the same erroneous assumption.

The servant has the undoubted right to rely upon the superior knowledge of the master, and is justified in acting on the belief that the latter has performed his full duty, unless the danger is so obvious as to inform him to the contrary, and there was nothing of the kind in this case.

A request to charge is improper - if ■ based upon an assumption not supported by the evidence. Tochman v. Brown, 33 N. Y. Supr. Ct. R., 409 ; Burdick v. Freeman, 120 N. Y., 420; 31 St. Rep., 427. Requests to charge upon hypothetical propositions based upon assigned facts are properly refused, where the law had been fully and fairly charged. James v. Chamberlin, 4 Week. Dig., 183. A refusal to charge a proposition which, however true it may be, so far as applied to the case, is a mere abstraction, is not error. Priebe v. Budge Co., 77 N. Y., 597 ; Menand v. Stevens, 44 N. Y. Supr. Ct. R., 515; Hine v. Bowe, 114 N. Y., 350; 23 St. Rep., 891; Bank v. Koch, 1 Silvernail, 415; 8 St. Rep. 37; Kissenger v. R. R. Co., 56 N. Y., 538; Moody v. Osgood, 54 N. Y., 488. A court is not bound to give instructions in the language in which they are asked. If those given sufficiently cover the case, and are correct, the judgment will not be disturbed. R. R. Co. v. M‘Carlhy, 96 U. S. R., 258. Taking the charge in its entirety, it is apparent that the case was fairly, intelligently and understandingly submitted to the jury in every possible legal phase. They awarded the plaintiff $2,500 damages, a sum not claimed to be excessive.

The requests to charge that were declined were technical in the extreme, and were for reasons not more technical properly refused.

The defendant also insists that there was not sufficient evidence that the death of the decedent was directly and approximately due to the injuries received by the accident The accident happened August 26, 1891. The plaintiff proved that the decedent, at the time of the injury, was thirty-two years of age; that he was a strong, healthy man, and had never before been sick. The witnesses all agree that the injuries received were of a serious character and that the decedent had to be taken to the hospital in an ambulance. He did not leave the hospital until after his death, and one of the attending physicians testified “he died from the result of his injuries.”

That his condition necessitated a surgical operation which was skillfully performed, and that he died of the shock which followed. This testimony as to the cause of death was received without objection, and would have been relevant even if it had been objected to. Egglar v. People, 56 N. Y., 642 ; Turner v. City, 109 N. Y., 301; 15 St. Rep., 935; People v. Willson, id., 345; 15 St. Rep., 503; Roscoe’s Grim. Év., 7th ed., 708. The surgical operation and the consequences flowing from it in no manner relieved the defendant, for it has been decided that “ where a person who, through the negligence of another, has received an injury which, without a surgical operation, would cause his death, employs a competent and skillful surgeon, by whose mistake the operation is not successful, and the patient dies, the wrongdoer is not shielded from liability "by the surgeon’s error, and this, although the operation is the immediate cause of the death.” Sauter v. R. R. Co., 66 N. Y., 50; S. C. 23 Am. Rep., 18. There was no pretense of mistake here on the part of the surgeon; on the contrary, the operation in this instance was skillfully performed, so that the case cited goes further then is necessary to go to- uphold the judgment now under review. We have carefully considered the various objections urged, and they are for the reasons stated, without merit. The judgment was right and the order appealed from properly made. They must, therefore, be affirmed,'with costs.

Freedman, P. J., and Glldersleeve, J., concur.


text:
    Fanny Maltbie, Resp’t, v. Francis Bolting et al., App’lts.

      (New York Superior Gourt, General Term,

      Filed December 29, 1893.)

    I, Nuisance—Coal hole.
    To make a coal hole a nuisance, it is necessary to show that the use was unusual, unnecessary and unreasonable, or that the manner of use was inherently dangerous, and that the rights and safety of the public had not been sufficiently guarded.
    2. Negligence—Contractor.
    Where the very act is not wrongful, the person in charge of the work assumes all the responsibilities connected with it or the manner of doing it.
    8. Same.
    The owner is not bound, at his peril, to stand by and see to it that a contractor, whom he employs to do a lawful act, does not, for the convenience of himself or his employes, commit wrongful or negligent acts while performing their duty.
    4. Trial—Charge.
    In an action for negligence, a charge that it is not necessary to prove negligence, is erroneous.
    6. Same.
    Where the complaint states a cause of action arising purely from negligence, a recovery, under such a plea, cannot always be sustained on the theory that the proof establishes a nuisance.
    Appeal by the defendants from judgment entered on verdict of jury in favor of the plaintiff, and from order denying motion for a new trial.

      Austin G. Fox, counsel for app’It Bolting; John L. Hill and George W. Poucher, counsel for app’lts Vaughan and the Moen’s Asphaltic Cement Co.; Robert P. Getty, Jr., and O. F. Moody, counsel for resp’t.
   McAdam, J.

The action was to recover $20,000 for personal injuries to the plaintiff by reason of alleged wrongful and negligent acts of the defendants.

It appears that on June 12, 1889, the plaintiff while passing up on the southerly side of Liberty street, in this city, on her way from the ferry of the Hew Jersey Central railroad at the foot of that street, struck her left knee against a barrel “ or something of that kind,” and fell over it.

The barrel had no head on it and was placed in an open, coal hole in the sidewalk, and anchored firmly in position by placing a stick entirely across the top of the barrel, to which was attached a rope running down and fastened below by heavy weights. The property belonged to the defendant Bolting, is situated at the southeasterly corner of Liberty and Washington streets, and known by the street number 186 and 186-J- Liberty street. The cellar of the building became filthy and was declared a nuisance by the board of health, which body directed Bolting, as the owner of the premises, to put in a water-proof cellar.

Bolting thereupon made a contract with the Moen’s Asphaltic Cement Company to carry out the order of the health boai’d.

The job was commenced May 4. 1889, and was completed June 25, 1889, thirteen days after the accident happened.

The performance of the work required the excavation, of the cellar and vault bottoms, so as to permit a new concrete bottom sixteen inches thick, the removal of partitions, and a quantity of debris; also the introduction of building material, bricks, sand, cement for concrete work,' and asphalt liquified by heat for laying the brick work which was to exclude the water which pressed into the cellar by the rising tides. This in turn involved the use of furnaces, boilers, etc., for heating the asphalt, the smoke and fumes from which are of a character that cannot be endured in closely confined apartments. Ventilation was, therefore, required not only for the safety of the workmen, but for the successful application of the cement.

The company made temporary use of the coal holes for the purposes of ventilation and introduction of building material while performing their contract, taking the precaution of endeavoring to secure the public from danger by introducing empty but heavy cement barrels in the opening extending up sufficiently high to give warning to pedestrians and prevent them from falling in. The plaintiff struck her left knee against one of the barrels, fell and sustained injuries of so serious a character that after much pain and suffering, amputation of the left leg just above the knee, being found necessary, was performed to save life. The plaintiff brought the action against the owners and contractors, jointly charging them with responsibility for the injury on the allegation that “ they wrongfully and negligently removed the covering from the coal hole * * * and wrongfully suffered and permitted the said coal hole to remain open, and wrongfully ana negligently placed a tub, keg or barrel, or something resembling a barrel in the said coal hole, the same standing or protruding a short distance above the sidewalk, and there wrongfully and negligently kept and maintained the same.” The answer of the cement company was substantially a general denial, while the defendant Bolting (the owner) pleaded in addition thereto the contractural relations existing between him and the cement company whereby it agreed to do all the work required, not as the servant of the owner, but as an independent contractor, without any supervision, care, charge or control on the part of the owner. The jury rendered a verdict against all the defendants for $17,500 damages. Without considering the arguments urged against the amount of the verdict, which for the present purposes, may be assumed to be proper, we are confronted by legal objections of a serious character which strike at the plaintiff’s right to any recovery on the proofs offered, in the form in which they went to the jury for determination.

While it is undoubtedly true as a rule, that the public are entitled to an unobstructed passage upon the streets, including the sidewalks of the city, and that any person, by unlawfully placing obstructions thereon may make himself liable as for creating or maintaining a nuisance, it is also true, that any temporary use of a highway'or street, that is rendered absolutely necessary from the necessities of trade, commerce, or the erection of buildings, that does not unnecessarily or unreasonably obstruct the same, is lawful and not the foundation of*such an action. Wood on ¡Nuisance, § 258; Commonwealth v. Passmore, 1 Serge. & Rawle, 219 ; People v. Cunningham, 1 Den., 524; People v. Horton, 34 N. Y., 610 ; Welsh v. Wilson, 101 id., 254; Callanan v. Gilman, 107 id., 360; 18 St. Rep., 397. The temporary use of coal holes, if required by the exigencies of trying situations, does not, if sufficiently guarded, constitute under all the circumstances a nuisance per se. To make it a nuisance in that sense, it is necessary to prove that the use was unusual, unnecessary or unreasonable, or that the manner of use was inherently dangerous, and that the rights and safety of the public had not been suficiently respected. See City v. Zimmerman, 95 Penn. St. R., 287.

The board of health had ordered the work to be done, and if the owner had not caused it to be done in the manner he did, the board of health could and probably would have had it performed at his expense. It was not work inherently dangerous if properly conducted- The acts to be performed were legal and not, therefore, within the special rule which holds that where work authorized by an owner will necessarily produce an injury to the public, he cannot, by contract with another, free himself from the consequences of the act. In other words, that where the very act is wrongful as against the plaintiff, the defendant cannot shield himself from the consequences by making a contract with another to do the wrong for him. Brennan v. Schreiner, 28 Abb. N. C., 481. The case more properly falls under the more familiar rule of respondeat superior, which lets the master in charge of the work assume all the responsibilities connected with it or the manner of doing it. The cement company was an independent contractor under this rule, and the principle is settled, that “ when the owner of land contracts with a builder to erect thereon a building according to certain plans and specifications, the latter to furnish all materials and labor, and to be answerable to the owner only for certain results, he will not be deemed the servant of the owner, although the work is to be done under the supervision of an architect selected by the owner.” Thompson on Keg., 909, 910.

The same learned author says : The rule is of especial force where the owner, in pursuance of such a contract, commits the entire care and control of the premises to the contractor. Here the owner will not be liable for an injury to a traveler in consequence of an excavation in the street being left unguarded.” Id., 910. Entire care and control were given to the contractor in this instance, and the owner had neither architect nor superintendent to exercise supervision and required the presence of neither.

There was nothing either in the terms of the contract, or in the work to be done, that made the owner liable for the consequences of the acts of the contractor, in placing or continuing the obstruction upon fiae sidewolk. Hexamer v. Webb, 101 N. Y., 377; Herrington v. Village, 110 id., 145 : 17 St. Rep., 92; Engel v. Eureka Club, 137 N. Y., 100; 50 St. Rep., 188; Ferguson v. Hubbell, 97 N. Y., 507; McCafferty v. R. R. Co., 61 id., 178; French v. Vix, 2 Misc., 312; Martin v. Tribune. 30 Hun, 391; Sulzbacker v. Dickie, 6 Daly, 471; Charlock v. Freel, 125 N. Y., 357; 34 St. Rep., 971.

The supreme court of the United States in Robbins v. Oity, 4 Wall,-at p., 679, recognized the-distinction before suggested in these words, “ Where the obstruction or defect caused or created in the street is purely collateral to the work contracted to be done, and is entirely the result of the wrongful acts of the contractor or his workman, the rule is that the employer is not liable; but where the obstruction or defect results directly from the acts which the1 contractor agrees and is authorized to do, the person who employs the contractor and authorizes him to do those acts is equally liable to the injured party.” See also Water Co. v. Ware, 16 Wall, at p. 576; Goudier v. Cormack, 2 E. D. Smith, 254: Milford v. Holbrook, 9 Allen R., 21. The obstruction or defect complained of was clearly collateral to the work contracted for, and the case was thus brought within the rule laid down in the authorities cited, which exempts the owner from liability.

The most that can be said against the owner is that he expected the contractor might possibly use the coal hole for taking inmaterial. No injury resulted from any such cause, but from one entirely separate and distinct. The removal of the coal cover and the putting in of a barrel by the contractor was something with which the owner had nothing whatever to do. Those acts were performed without any direction from him, and they were not continued by any agency of his. The liability of an owner for injuries sustained by reason of the presence of coal holes on the sidewalk need not for the same reason be seriously considered, for the mere fact that coal holes were there was not the proximate or responsible cause of the injury of which the plaintiff complains.

The trial judge charged the jury that the owner “was bound to have his premises under such reasonable control that it would disclose whether anybody m7as attempting against his wishes to put a nuisance on the sidewalk.” The owner lived in Rock-land county, and was under no obligation to make visits to New York to protect his sidewalk against obstructions placed upon it by persons without his permission, nor was he obliged to employ agents either for that purpose or to prevent trespasses. Nor is the owner of real estate bound at his peril to stand by and see to it that a contractor whom he employs to do a lawful act, does not, for the convenience of himself or his employes, commit wrongful or negligent acts while performing their duty. In referring to the obligation of a landlord to whom the same rule has been applied, it has been judicially said, “ That can only be true on the theory that every owner of rented property in New York is bound to watch the sidewalks and protect them against unauthorized trespasses, and is bound to know when such a trespass is committed. We are aware of no case that goes so far as that.” Wolf v. Kilpatrick, 101 N. Y., 146, at p. 151; Balbage v. Powers, 130 id., 281; 41 St. Rep., 521. The trial judge, by this direction, imposed on the owner a stricter rule than the law required. No case fastening a legal liability on the owner as such, was made out, and the motion to dismiss the complaint as to him should have been granted. Pages 217, 218 of case, fols. 868 to 873. As to the contractors, different questions arise. They did the very acts of which the plaintiff complains, and if they were done wrongfully and negligently as she charges, or if they were performed without proper regard to the rights of the public on the sidewalk, they may have incurred a liability.

Upon this point the trial judge charged the jury : “In such an action as the present, the plaintiff is only bound to prove the existence of the obstruction upon the sidewalk, that the defendants are responsible for its being there, and that she was injured thereby. * * * It is not necessary for the plaintiff to prove negligence.” The court made this charge upon the theory that the obstruction was a nuisance per se} without regard to the peculiar circumstances under which it was placed there, nor the exigencies which gave rise to its being there, nor the length of time the obstruction continued, all of which were elements which should have gone to the jury as questions of fact to be determined by them before that conclusion could be reached as one of law. Certain qualifications were made in the charge, but not sufficient to free it from error. The complaint states a cause of action arising purely from acts of negligence, not from the erection or maintenance of a nuisance, and a recovery under such a plea cannot always be sustained on the theory that the proof showed a different ground of liability in this case, nuisance, Martin v. Pettit, 117 N. Y., 118 ; 26 St. Rep., 919 ; Reed v. McConnell, 133 N. Y., 425, 434; 45 St. Rep., 227; Romeyn v. Sickles, 108 N. Y., 650; 13 St. Rep., 864; Southwick v. Bank, 84 N. Y., 420, 428; Woolsey v. Trustees, 69 Hun, 489, 494; 52 St. Rep., 720.

There was testimony given at the trial by several witnesses familiar with such matters that the method of protecting coal holes adopted by the cement company while doing tire work has always been found safe, and that this was the first accident ever heard of where a barrel has been used in this way.

This evidence was material on the subject of exercise of proper care, but was rendered nugatory by the charge “ that it was not necessary to prove negligence,” for if the contractors were liable independently of the presence of care or absence of it, then this testimony could have exercised no influence whatever upon the jury, who were in effect told that they might disregard it.

The testimony of these witnesses, with proof of the peculiar circumstances, the exigencies of the occasion, the length of time the obstruction continued, and the like, were, in our judgment, elements going to show that the obstruction was not a nuisance per se, but a use of the sidewalk by necessity, for the purpose of complying with a a lawful order of a board created by legislative enactment, and were proper subjects for consideration by the jury to aid in determining whether the use was a proper one, or whether it was what the court, in advance of such determination, assumed it to be, to wit: an unauthorized interference amounting in law to a nuisance. The requirements of trade, commerce and of building have to be recognized, and public rights must sometimes yield to temporary inconvenience arising from them (see Booth v. R. R. Co., 140 N. Y., 276; 55 St. Rep., 656), as a pedestrian must when the thoroughfare is crowded by other pedestrians who have equal rights thereon with himself. In determining whether excavations on the sidewalk, bridges over the walk, derricks placed on the walk or-overhanging it, obstructions made necessary by building operations, skids over the walk and carts backed thereon for the loading and unloading of merchandize to and from warehouses, are nuisances, all the concomitants must be considered as characterizing, explaining and perhaps justifying or excusing the act.

When the matter is regulated by ordinance and a permit is required to justify a permanent or even a temporary interference with the highway, these matters are proper subjects for investigation and proof. In the present instance, the lines of liability were too tightly drawn-and more rigid obligations enforced against the defendants than the law justifies.

The view stated renders it unnecessary to consider the other exceptions taken. For the reasons already expressed, the judgment and order appealed from must be reversed, as to all the defendants, with costs to appellants to abide the event, and a new trial ordered.

Freedman, P. J.yand Gtldersleeve, J., concur.


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    The People v. The Canal Street Bank, Resp’t, Charles M. Levy, App’lt.

      (New York Superior Court, General Term,

      Filed December 1, 1893.)

      1. Interest—Deposit.
    Where there was no' agreement by a bank to pay interest on deposits, nor the bank put in default by some act of the depositor, no interest is payable thereon.
    2. Tender—Receiver.
    A tender by a depositor of the difference between his indebtedness to an insolvent bank and his deposit therein, is inoperative, where no order of the court has been obtained permitting the offset claimed, or authorizing the receiver to give up the note without full payment.
    8. Receiver—Compromise.
    An application to the court to instruct its receiver to accept a compromise of pending suits on an equitable basis, is not a matter of strict right but an appeal to the favor of the court, and the court may impose the costs of such suits in full as a condition of granting the relief applied for.
    Appeal by Charles M. Levy, petitioner, etc., from so much of the order made at special term as 'imposes upon him the payment of fifty dollars costs, and disallows interest on counterclaim.

      George Carlton Comstock, for appit; M. J. Mulqueen, for receiver of bank; S. W. Rosendale, Attorney General, for the people.
   McAdam, J.

The defendant, a banking corporation organized under the state banking act, on June 6, 1893, suspended payment and went into insolvency, and one Antonio Rasines was, on June 9th, appointed temporary receiver of its property and effects by an order of this court, and was afterwards, to wit, on September 12, 1893, appointed permanent receiver by it. Immediately upon the appointment of Mr. Rasines as temporary receiver he qualified as such and took possesion of the property and effects of the defendant.

On the day the bank failed, but prior to the time when Mr. Rasines was appointed temporary receiver, one Charles M. Levy, the petitioner, was the owner of a claim against the bank arising from moneys deposited therein, amounting to $1,273.45. Part of this was his own deposit and part of it was the deposit of one Rubinsky & Rabinovitz which had been assigned to him prior to the appointment of the receiver.

At that time Mr. Levy had a number of notes under discount with the bank which were customer’s notes made to Mr. Levy’s order and indorsed by Mr. Levy as payee, which notes had not then fallen due, but which fell due at various times between July 1st and September 20,1893, some of which were paid at maturity and others of which went to protest.

On September 20, 1893, these unpaid notes amounted together with protest fees and interest at six per cent, to the sum of $1,796.47. •

On October 6,1893, the receiver began seven different actions on the notes against Mr. Levy in the city court to recover the amount of the bank’s loans.

Mr. Levy thereupon filed a petition in this court for the purpose of having the receiver instructed to surrender to him the notes on payment of the balance due to the bank. The prayer of the petitioner was granted, provided he would pay one-third of the costs of the city court actions, consented to their discontinuance, and paid the balance due to the bank, with interest, the two amounts being fixed at $544.07.

The appellant claims that the interest was not properly computed, in that he should have been allowed interest on the deposits as an offset to the interest on the notes. The notes by operation of law carried interest from the time of their maturity, while there was. no agreement by the bank to pay interest on the deposits, nor was the bank put in default by" any act of the petitioner prior to its suspension, so as to start the running of interest.

The petitioner also claims that interest on the notes was suspended by a tender made by him of the difference between the two demands. Ho order of the court had been obtained permitting the offset claimed, or authorizing the receiver to give up the notes without full payment, and there was no proof that the alleged tender (if operative) was kept good by a specific appropriation of the money tendered. • Roosevelt v. Bull’s Head Bank, 45 Barb., at p. 584; Becker v. Boon, 61 N. Y., 317. The dispute as to interest was trifling in amount, and the court committed no error concerning it.

The costs of the city court actions had been legally incurred, and the court might have imposed their payment in full as a condition of granting the relief applied for. The application was not one of strict right. It was really an appeal to the favor of the court to instruct its receiver to accept a compromise on an equitable basis, rather than compel the petitioner to assert his legal rights at great expense in defense of the city court actions in which there would have been some recovery in favor of the receiver, with an award of costs much larger than those imposed as a condition of granting the relief applied for. There was no abuse of power or discretion, and the order appealed from must be affirmed, with costs.

GrlLDERSLEEVE, J., concurs.


text:
    Frank Forrester, App’lt, v. Anna C. Price, Resp’t.

      (Supreme Court, General Term,

      Filed December 29, 1893.)

    1. BrOBEBS—CONTRACT.
    The phrase "all else can be satisfactorily arranged" means that, if the details prove satisfactory to both buyer and seller, and their minds meet in reference thereto, a sale will be made or a liability for brokerage incurred.

      H. Same.
    Where the terms of a brokerage contract have not been definitely prescribed, the broker assumes the hazard of being able to find a person whose terms may prove so satisfactory to the owner that some definite arrangement may be made, and in respect to which the minds of the parties may meet.
    Appeal by plaintiff from judgment entered after dismissal of his complaint at trial term.

      George B. Beattys, for app’lt; Wauhope Lynn, for resp’t.
   McAdam, J.

The defendant employed the plaintiff as a real estate broker, to find a purchaser for the property known as No. 219 Spring street, this city, for the price of $30,000. No terms were then specified. She afterwards wrote to the plaintiff that there was a lease on the store having seven years to run, and that “all else can be satisfactorily arranged.”

The defendant subsequently countermanded the employment, and if the revocation was made before the plaintiff accomplished his undertaking, he is without a cause of action, Sibbald v. Bethlehem Iron Co., 83 N. Y., pp. 384, 385. The evidence shows that the broker procured one Ketcham as a proposed purchaser; that Ketcham called upon the defendant and offered her $30,000 for the property, provided she would accept $10,000 in cash and take a $20,000 mortgage payable in three or five years at five per cent, interest. This was the only offer to purchase, and, it in no manner satisfied the terms of the plaintiff’s employment The owner was under no obligation to sell her property on terms dictated by the proposed purchaser, to which she had in no manner assented.

The phrase “ all else can be satisfactorily arranged ” does not mean that the owner must sell her property on whatever terms a proposed purchaser may suggest or else pay brokerage. It means that if the details prove satisfactory to both buyer and seller, and their minds meet in reference thereto, a sale will be made or a liability for brokerage incurred.

There is no evidence, direct or inferential, proving that the terms offered were satisfactory to the owner. It is clear she never accepted them, and that the minds of the parties never met in respect thereto, and that no sale was made. Under such circumstances no brokerage was earned by the plaintiff, and the trial judge properly dismissed the complaint. The duty assumed by a broker is to bring the minds of the buyer and seller to an agreement for a sale and the price and terms on which it is to be made, and until that is done his right to brokerage does not accrue. Sibbald v. Bethlehem Iron Co., supra. Where the owner gives the broker the price and particular terms on which the property is to he sold, and the owner thereafter capriciously refuses to make thé sale to a person, procured by the broker, able and willing to take on those terms, the broker having done all he undertook to do, all it was possible for him to do, is undoubtedly entitled to bis brokerage. But that is not this case. The plaintiff undertook to find a customer for $30,000, which ordinarily means that amount in cash, or as subsequently modified by the letter “ on terms to be satisfactorily arranged.” The terms not having been definitely prescribed, the broker assumed the hazard of being able to find a person whose terms might prove so satisfactory to the owner that a definite arrangement might be made, and in respect to which the minds of the parties might as a result meet. The owner was certainly not bound to assent to whatever terms the person procured might offer, this was not her contract. True, such an indefinite employment puts a risk upon the broker, but if he accepts the duty, he takes all the chances incident to it and cannot recover merely because the terms of his employment make it difficult for him to accomplish the task he undertook to perform as a condition precedent to his right to recover. The plaintiff failed to make out a cause of action, the complaint was properly dismissed, and the judgment entered on such dismissal must be affirmed, with costs.

Freedman, P. J., and Gtldersleeve, J., concur.


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

      (New York Superior Court, General Term,

      Filed December 29, 1893.)

    1. Trial—Bequest to find.
    Section 1023 of the Code never contemplated that either court or referee should be required to pass upon anything more than the facts material to the case of the side presenting the requests and deemed by it established by the evidence and not included in findings made at the request of the other side.
    2. Same.
    Nor can they he required to find upon every piece of evidence offered or its cogency or effect in leading to the findings or conclusions made.
    Appeal by defendants from order made by the trial judge declining to pass upon certain findings proposed by them.

      Davies & Bapallo, for app’lts ; Leo G. Dessar, for resp’t.
   McAdam, J.

The defendants after the trial proposed requests which the trial judge declined to pass upon, because of prefatory matter therein which called in certain contingencies for the changing of the requests as to the matter of fact, to requests as to matters of law and also the reverse, and required each sentence to be passed upon, and for the further reason that the court had already passed upon the material matters in the case, at the request of the plaintiff. It appears that the defendants made fifty-eight requests to find facts and twenty-two to find conclusions of law, and requested the court, if it refused to find the facts as requested, to find the same matters as conclusions of law, and if it refused to find the law as requested, to find the same matters as fact. This is the prefatory matter referred to. This is not all. They stated that each “ sentence of each proposed finding is prepared separately as if separately numbered.” The court in Steubing v. N. Y. Elevated R. R. Co., 138 N. Y., 658, 661; 53 St. Rep., 186, considered the precise question presented here, and decided that the practice followed by the defendants, was not only unauthorized, but one not to be tolerated.”

That it was not needful for the protection of the rights of any party, and that the tendency was to ensnare the trial judge and frequently to defeat the ends of justice by introducing mistakes, confusion and uncertainty into the record. While § 1023 of the Code was intended to provide a uniform and adequate method of discovering the grounds and principles upon which were based the judgments rendered by courts and referees, it never contemplated that either should be required to pass upon anything more than the facts material to the case of the side presenting the findings and deemed by it established by the evidence and not included in findings made at the request of the other side. Mor was it intended that the court or referee should be required to find upon every piece of evidence offered or its cogency or effect in leading to the findings or conclusions made.

Proper practice requires that a request to find either facts or law should be plainly stated in a single proposition, the whole of which can be granted or refused, and the ■ request must be unaccompanied by conditions, provisos, penalties or duties imposed by the party, for these are not authorized by the statute, and are not essential to the administration of justice. Proposed findings should never be made more numerous, intricate or' complicated than the exigencies of the case and nature of the controversy require. They ought to simplify and aid review by the appellate court rather than obscure and complicate it by repetitions, immaterial matter and the like which serve no useful purpose. The subsequent notice given by the defendants, in which the plaintiff united, requesting the trial judge to settle the findings and waiving all irregularities, did not free the defendants practice from error nor make it comformable to law. The parties could not Toy their consent require the trial judge to engage in a practice which our appellate court holds is “ not to be tolerated.” To follow it would be to give it judicial sanction or approval in violation of the above direction. Nor could the parties by consent impose upon the trial judge a duty not made incumbent upon him by law.

The court below acted strictly within the limits of duty as established by prescribed practice, and not having abused its power or discretion, the order appealed from must be affirmed with costs.

Freedman, P. J., and Gtldersleeve, J., concur.


author: Mo Adam, J.

text:
    Michael Fannessey, App’lt, v. The Western Union Telegraph Co. et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed December 29, 1893.)

    , 1, Master and servant—Duty.
    Where the master provides the usual appliances for the work, which are suitable, -reasonably safe, properly constructed and do not cause injury by breakage or imperfection, he discharges his full duty to his servant.
    3. Same—Risk.
    Where the servant knows of the dangers when he enters the employ of the master, he assumes the risks incident to the employment.
    Appeal by plaintiff from a judgment entered after a dismissal of his complaint at trial term.

      Browne & Sheehan, for app’lt; Jacob F. Miller, for resp’t.
   Mo Adam, J.

The upper stories of the building occupied by the Western Union Telegraph Company, situate on the northwest corner of Broadway and Dey street, in New York city, were, in the month of July, 1890, seriously damaged by fire. For the purpose of repairing and reconstructing the injured portions, the telegraph company employed the defendants' Smith and Dexter to remove the debris from the premises. To facilitate their work, Smith and Dexter caused to be erected a wooden shute extending from the upper stories to the surface of the street near the sidewalk curb. This shute was used to precipitate the debris from the upper floors of the building to the street, for removal therefrom in carts. It appeared by the evidence that the shute was covered until it nearly reached the sidewalk, where it had an opening. It was also open at the end to let the descending material fall out into the street

All the men employed on the work (including the plaintiff) were employed by Smith and Dexter, and it was done under their direction. The shute on the day of the accident, was connected with two different floors and the “ stuff came right down the shute according as they would shovel upstairs.”

Among the material which came down were bricks, which, when they struck near the bottom of the shute, which was slanted into the street, would scatter or hop around for about ten feet. The plaintiff was employed to shovel into carts the material which came down. He had observed the character of the material coming down and its action as described above. He nevertheless continued at the work, until struck by one of the .bricks, which inflicted injuries upon his head which necessitated his removal to the hospital. To recover damages for these injuries the action was brought.

There was no proof of improper construction of the shute, and no evidence that it was an unusual or unnecessarily dangerous appliance; on the contrary, the plaintiff’s witness and co-workman Cavanagh testified that such shutes are “common things in this city.” The plaintiff testified that he saw and knew the operation and effect of the shute, so that its dangers were not secret but obvious.

At the conclusion of the plaintiff’s case, his complaint was dismissed on the ground that no cause of action had been established and from the judgment entered on this direction the appeal was taken. Upon the argument it was conceded that the dismissal so far as it related to the Western Union Telegraph Company was right, but the plaintiff insists that as to the contractors Smith & Dexter, the direction was erroneous.

The direction was right even as to Smith & Dexter. They were not insurers of the plaintiff’s safety—they provided the usual appliances for the work—which were suitable—reasonably safe properly constructed and did not cause injury by breakage or imperfection. They thereby discharged their full duty to the plaintiff. Marsh v. Chickering, 101 N. Y., 396; Stringham v. Hilton, 111 id., at p. 195 ; 19 St. Rep., 621; Cregan v. Marston; 126 N. Y., 568; 38 St. Rep., 428. The plaintiff knew of the dangers when he entered the employ of the contractors. These were apparent to all, and were risks incident to his employment. Sweeny v. Berlin, 101 N. Y., 520; Hudson v. Ocean Co., 110 id., 625; 16 St. Rep., 416. The appliances being suitable, if any fault can be attributed to any of the workmen on the job, it was that of a co-employe, and no recovery can be had against the defendants for such acts. Hudson v. Ocean Co., supra; Hussey v. Coger, 112 N. Y., 614; 21 St. Rep., 848, and kindred cases. For these reasons, and without considering the question of contributory negligence, the plaintiff’s complaint was properly dismissed.

The plaintiff invokes the rule that a master is bound to furnish his servant with a safe and suitable place to do his work, and is liable if he fails to perform that duty. The plaintiff was assigned to a place on the street with- the other workmen engaged on the same work. The work could be done no where else. The dangers surrounding the situation were patent to all, and when the plaintiff accepted such employment and continued in it with full knowledge of its dangers, he cannot visit misfortunes which followed, on the master. Thompson on Neg., 1008. A recovery cannot be had merely because an accident has occurred. Some wrong or neglect on the part of the defendants and freedom from fault on the part of the plaintiff must be shown to make them liable. Race v. Ferry Co., 138 N. Y., 647 ; 53 St. Rep., 9; Potter v. R. R. Co., 136 N. Y., at p. 81; 48 St. Rep., 843. No such proof was offered.

It follows that the judgment appealed from must be affirmed, with costs.

Freedman, P. J., concurs.