text:
    Philip Market, Resp’t, v. Charles Herbert Diamond, App’lt.

      (City Court of New York, General Term,

      Filed May 25, 1892.)

    Arrest—Affidavit .
    An affidavit to obtain an order of arrest in an action for false representations as to the solvency of a person to whom plaintiff sold on the faith thereof, stated that such representations were false and made with the preconceived intent of defrauding plaintiff; that said person was insolvent and without means; and that deponent has since ascertained from persons that know her, that she resides on the top floor of a tenement and has been supported in part by an aid society. Held, that such affidavit was insufficient to authorize an order of arrest; that the first part states only conclusions and not facts, and the latter part is defective in not stating the source of the information and the reason for not presenting the affidavit of the informant.
    Appeal from order denying motion to vacate an order of arrest.

      Mooney & Shipman, for app’lt; F. H. Gray, for resp’t.
   McCarthy, J.

This is an appeal from an order denying a motion to vacate an order of arrest.

The motion was on the original papers, which were a verified complaint and affidavit.

The action was brought to recover damages for alleged false representations.

The complaint and affidavit upon which the order of arrest was granted set forth that the defendant represented to plaintiff that said “ Maria K. Winne was solvent and in good credit, and worth the sum of one hundred thousand dollars over all her debts and liabilities,’’ “and that, she owned real estate in the city of Kew York, free and unincumbered, worth over fifty thousand dollars.”

The complaint sets forth:

“That the said representations were false, in that said Maria N. Winne was not then and there solvent and in good credit, and worth one hundred thousand dollars, or fifty thousand dollars, over and above all her liabilities; but on the contrary, and as the defendant then well knew, the said Maria R. Winne was then and there insolvent, and not in good credit, nor safe to be trusted.”
The affidavit sets forth:
“That said representations as to the solvency of said Maria R. Winne were false and fraudulent and untrue, and were made with the pre-conceived design and intent of defrauding this plaintiff, and as a matter of fact said Winne was insolvent, and was a woman without means, and deponent has since ascertained, from persons who know said Maria R. Winne, that she was residing at 226 First street, Albany, on the top floor of a tenement, at a rental of $9 per month, and that she had been supported in part for past years by the Ladies’ Aid Society of St. Paul’s Church in the city of Albany.”

The foregoing are the only allegations of the falsity of the alleged representations.

It is very clear from, an inspection of the affidavit that down to the words “ deponent has since ascertained from persons,” all the allegations necessary to sustain the order of arrest are mere conclusions.

The plaintiff at the time of the making of the alleged representations must have believed them and relied on them, else one of. the essentials would be missing.}

He now alleges that said Maria R. Winne was not solvent, nor in good credit, nor worth a certain sum over and above all her liabilities, but, on the contrary, was insolvent and not in good credit, nor safe to be trusted.

When did he ascertain this, and how, and from whom, and what were the facts? Otherwise these allegations are mere conclusions.

To authorize an order of arrest, facts and not conclusions must, be stated. Meriden Malleable Iron Co. v. Baudman, 2 W. Dig., 591; Dreyfus v. Otis, 54 How. Pr., 405.

If the conclusions of the affidavit are to be drawn from communications, whether written or verbal, the communications must be set forth in order that the court may see that the deductions of the affiant are well founded.

Any other rule would make the affiant the sole judge as to whether the evidence which he had in his possession was sufficient to entitle him to the relief sought.

In the case at bar the affiant swears to nothing but conclusions. Such allegations may be good in a complaint, but are entirely useless in an affidavit, whose office it is to place before the court the evidence from which it may draw its conclusions. Moore v. Becker, 13 St. Rep., 567, 568; Hecht v. Levy, 20 Hun, 54; Perry v. Smith, 9 St. Rep., 728. See opinion of Ruger, C. J., in Morris v. Talcott, 96 N. Y., 107, 108.

At the close of the affidavit the affiant says “ And deponent has since ascertained from persons who know said Maria R. Winne, that she was residing at 226 First Street, Albany, on the top'floor of a tenement, at a rental of nine dollars per month, and that she had been supported, in part, for past years by the Ladies’ Aid Society of St. Paul’s Church, in the city of Albany." This is defective ; the affiant was bound to state the source of this information, giving the name of the informant and the reason why an affidavit was not presented. Jordan v. Harrison, 13 Civ. Pro., 448; Brown v. Keogh, 39 St. Rep., 225-227.

The affidavit being defective in the matters thus pointed out, the order of the special term should be reversed and the motion vacating the order of arrest granted, with costs.

McG-own, J., concurs.


source: Caselaw Access Project

author: McGown, J.

license: Public Domain

text:
    Annie Haines, Resp’t, v. Denman Thompson et al., App’lts.

      (City Court of New York, General Term,

      Filed May 25, 1892.)

    Contract—'Theatrical—Statute of frauds.
    In an action by an actress for wrongful discharge, the complaint alleged that in the month of June defendants engaged her for a season to commence in August following and which ended the first of June of the next year. Plaintiff testified that one of the defendants said they would have a long season, perhaps a year. Reid, that the contract was not void under the statute because not in writing, as the season terminated within one year from the making of the contract.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion to set aside the verdict and for a new trial.

      E. Browne, for app’lts; Dittenhoefer & Gerber, for resp’t.
   McGown, J.

Judgment was entered herein against the appellants, on the verdict of a jury at trial term, for the sum of $1,038.87, on November 12, 1891, in favor of respondent.

At the close of the trial defendants’ counsel moved to set aside the verdict and for a new trial on all the grounds mentioned in § 999 of the Code, and on the 7th day of December, 1891, on application of counsel for defendants, an order was duly made by Justice Yah Wyclc and entered, denying in all respects defendants’ motion for a new trial.

From this order, denying the motion for a new trial, defendants appeal.

The plaintiff herein seeks to recover damages for a wrongful discharge.

She alleges in her complaint that on or about the month of June, 1888, the defendants hired and engaged her to render her services as a member of a company performing the play known as “ The Two Sisters,” and that the hiring and employment of the plaintiff was for the theatrical season of the said “ Two Sisters ” company, which commenced on or about the 23d day of August, 1888, and ended, on or about the 1st day of June, 1889, at a salary of thirty-five dollars per week, which hiring arid engagement plaintiff accepted; that she entered upon the performance of her duties and rendered her services from the 23d day of August, 1888, until the 22d day of December, 1888, on which day the defendants, without cause and against her consent, wrongfully discharged her; and claims damages in the sum of $822.50, and interest.

The defendants in their answer admit that they were jointly interested in said play, and also admit the hiring on the month of June, 1888, and as a defense allege,

“III. As a further * * * defense * * * said defendants allege that at or about the times mentioned in the complaint, said plaintiff was engaged * * * at a salary of thirty-five dollars per week.

“That said engagement was for no definite period, but was to continue at the pleasure of these defendants, and was a weekly hiring.

“ That these defendants on or about the 22d day of December, 1888, terminated said engagement, as they had a right to do.”

So, that, the only issues raised by the pleadings, and to be passed upon by the jury, was as to the duration of the employment.

The only evidence offered on the part of the plaintiff was that of the plaintiff, while the only evidence offered on the part of the defendants was that of the defendant Eyer.

The only parties present when the contract was made were the parties to the contract. The company continued giving performances until June 1, 1889, a period'of forty weeks.

The defendant, on his cross-examination, was asked :

Q. That play, which you say was not a success, has been performed from August, 1888, to the present time? A. Yes, every season; that season of 1888 lasted until about June 1st.

The trial' justice we think was extremely liberal in admitting testimony on both sides.

The exception taken at folio 49 was not well taken.

The defendants’ counsel moved to dismiss the complaint upon the following grounds:

First. That according to the testimony of the plaintiff, the term of employment was for a year, to commence in August, the engagement being made in June, which was contrary to the statute of frauds, being an agreement not to be performed within a year, and not in writing.

After a careful examination of the testimony of the plaintiff, we cannot agree with the statement of counsel in his motion to dismiss, viz.: that “the term of employment was for a year.”

Plaintiff, at folio 32, testified as follows:

“ He (Ryer) said ‘Well, we will have a long season, thirty-five or forty weeks, perhaps a year.’ ”

The statute of frauds does not include contracts which may or may not be performed within one year from the making thereof, but merely those which within their terms, and consistent with the rights of the parties, cannot be performed within that time. See Smith v. Conlin, 19 Hun, 234.

In the case at bar, the season terminated within one year from the making of the contract.

The contract was made'in June, 1888, while the season of the “Two Sisters” company terminated June 1, 1889. See also evidence of defendant Ryer.

Second. That it is incumbent upon the plaintiff to prove that the play was a success before she can recover.”

The question as to the success of the play was submitted to the jury by the trial justice in his charge at folios 76 and 77, and the jury, having rendered their verdict in favor of the plaintiff, evidently passed upon the question of success, as the presumption is that the jury obeyed the instruction of the trial justice.

We also think that there are no merits in the other exceptions, and that they were not well taken.

The case was fully and fairly submitted to the jury by the trial justice upon the issues before the court.

In his charge, the trial justice stated as follows:

“ Of course, it is for you to determine what was the true meaning of the parties in entering into this contract If you find the plaintiff’s version of it is correct, she is entitled to your verdict for such sum as you may find is due her, and she claims that $837.65 is due her. of course if you believe the defendants’ version, your verdict will be for the defendants.” Ho exception was taken thereto.

Defendants’ counsel asks the court to charge the jury that they must find the term of employment; for how long it was.

The Court.—Of course they must determine what was the term of employment If it was by the week, the defendants had a right to discharge her, or if it was on two weeks notice they had a right to discharge her on two weeks notice. If it was for the season they had no right to discharge her until the season expired.

Ho exception was taken thereto, and no further request to charge as to the time of the contract was made.

The jury, on the question of fact, by their verdict found that the contract was as stated by plaintiff.

And judgment must be affirmed, with costs to the respondent, Newburger and McCarthy, JJ., concur.


author: McCarthy, J.

text:
    John Carling, Appl’t, v. William Purcell, Resp’t.

      (City Court of New York, General Term,

      Filed May 25, 1892.)

    1. Statute of frauds—When need not be pleaded.
    Where it appears on the face of the complaint that the contract sued upon is void under the statute, or where the defendant denies the agreement alleged in the complaint, it is not necessary to plead the Statute of Frauds in order to enable the defendant to avail himself of it on the trial.
    2. Same—Verbal lease.
    The complaint alleged a leasing of premises for one month from the first of April, and at the same time a leasing for one year from the first of May. In an action for failure to put plaintiff in possession, Held,, that this arrangement constituted but a single agreement, which was a hiring for more than one year ; that there being no allegation that the same was in writing, it was apparent on the face of the complaint that such contract was void, and that plaintiff could not by separating the month of April from the rest of the term avoid the statute.
    Appeal from judgment dismissing the complaint.

      T. J. Farrell, for appl’t; Johnston & Johnston, for resp’t.
   McCarthy, J.

This is an appeal from a judgment for the sum of $90.63 costs and dismissing the plaintiffs complaint, after a trial had before Mr. Justice Newburger and a jury.

The action is brought to recover the sum of $412, the alleged damages sustained by plaintiff by reason of the alleged failure of the defendant to put said plaintiff in possession of the premises No. 201 East Twenty-First street, in the city of Brooklyn, under an alleged leasing thereof by the defendant as landlord to the plaintiff as tenant.

Plaintiff alleges, both in his complaint and in his testimony on the trial, that this letting occurred on the 18th day of March, 1890, when the plaintiff alleges the defendant let unto said plaintiff this store in question for the term of one month, being the month of April, 1890, and at the same time and place also let the said premises for the term of one year from May 1, 1890.

He also alleges that the rent that he was to pay for these premises under this alleged lease was the sum of twenty-two dollars a month.

Plaintiff failed to prove upon the trial any damages worthy of consideration or possible for the court to submit to the determination of the jury.

The court, at the close of the plaintiff’s proof, upon the defendant’s motion to dismiss upon the ground that no damages had been proved and that the lease as alleged and testified to was void under the statute of frauds, and that no damages could be recovered for breach of such an agreement, dismissed the plaintiff’s complaint.

The defendant’s answer was, in effect, a general denial. Now, was the agreement in the complaint one entire contract, and can the defendant set up at the trial the statute of frauds, although ' not having pleaded the same.

The defendant having denied the agreement alleged in the complaint, put the plaintiff on his proof, and before the plaintiff could recover he was bound to prove a valid and binding contract.

• It was apparent on the face of the complaint that the contract was void, there being no allegation that either the supposed first or second contract was in writing.

The rule is well settled that where in actions similar to the one at bar, it appears on the face of the complaint that the contract is void, or where the defendant denies the agreement alleged in the complaint, it is not necessary to plead the statute of fraud. See opinion McAdam, Ch. J., in Berrien v. Southack, 26 St. Rep., 934; Unglish v. Marvin, 128 N. Y., 385, 386; 40 St. Rep., 277; Wells v. Monihan, 41 id., 410.

It is very clear from the testimony of the plaintiff that the letting of the premises from April 1st to May 1st, and then from May 1st for one year at the same time and on the same terms and conditions, were one and the same contract

The plaintiff testifying, says: “ The defendant then turned to me and said. All right Mr. Carling, you can have the place for one year. I said, one year from the first of April. He answered No, as he preferred the first of May, as it was a better time for renting from May to May. I told him I would give him a check for a month’s rent the next day (meaning for April, see plaintiff’s exhibit A). All right, you give it to Mr. Fogarty.”

In other words, it was agreed that the term should begin April and end one year from May 1st. The plaintiff cannot by separating these two months endeavor to avoid the statute.

This arrangement constituted but a single agreement, which was a hiring for more than one year, and being verbal was void. In the language of J. F. Daly, J., 13 Daly, 35, “Any other interpret tation would permit a claim under a verbal agreement made at one time of a tenancy for successive years for any period on the ground that a separate agreement was made for each year.

“The agreement made at one time on the subject of hiring is but one agreement, no matter how many stipulations respecting different years are embraced in it.” See also Prial v. Entwistle, 10 Daly, 398. See opinion Earl, J., in Clark v. Barnes, 76 N. Y., 303, 304, also McAdam, L. and T., supplement to 2d edition, 16, 17.

A contract void by the statute is void for all purposes.

It confers no right and creates no obligation as between the parties to it.

It cannot be enforced directly or indirectly.

The plain intent of the statute is that no person shall be subjected to any liability upon such an agreement. Dung v. Parker, 52 N. Y., 496.

We find no error in the ruling on the trial, and for these reasons the judgment must be affirmed, with costs.

McG-own, J., concurs.


author: Van Wyck, J.

text:
    Emanuel Foerster, Resp’t, v. Albert C. Squier, App’lt.

      (City Court of New York, General Term,

      Filed June 18, 1892.)

    Bills and notes—Duress—Ratification.
    In an action upon a promissory note against the endorser, the defendant claimed that his endorsement was made under duress by threats of the payee to file a mechanic’s lien against buildings being erected by the maker for defendant’s firm. It appeared that such threats were also made two months before the note was made; that defendant made no objection on that ground when the note became due, and twelve days later made a payment thereon. Held, that even if such endorsement was made under duress, such unexplained voluntary payment was a ratification thereof, and that such defense was not sustained.
    Appeal from judgment entered on verdict directed by the court in favor of the plaintiff.

      Alex. Thain, for app’lt; Briesen & Knauth, for resp’t.
   Van Wyck, J.

This action is to recover on a note made by one Osborne to the order of the plaintiff and endorsed by defendant. This is an irregular endorsement and defendant could not be held liable by the plaintiff, payee, as held in Reed v. Photo Gravure Co., 38 St. Rep., 467, unless parol proof was given that such endorsement was made to give the maker credit with the payee. However, it is alleged and proved that such endorsement was so made in the case at bar. The defendant denied endorsement for value or as guarantor; delivery to plaintiff either by him or the maker; presentment for and refusal of payment; protest and notice thereof; and alleged endorsement for accommodation of plaintiff; delivery by maker without consideration; extension of time of payment to maker without defendant’s knowledge ; payment in full by the maker; and that he had been coerced into making the endorsement by duress, in that plaintiff had threatened to file a mechanic’s lien against his houses, which were in process of construction, although he had no legal right to do so, unless defendant would so endorse the note made by Osborne, who was under contract with defendant to build the houses or some part thereof. After .both parties had finally rested, the court announced “I propose to direct a verdict, ” and defendant’s counsel then asked to go to the jury upon the defense of duress, which was denied and excepted to, and thereupon the court directed a verdict for plaintiff for amount claimed, which was immediately rendered by the jury. The defendant having requested to go to the jury only on the defense of duress, must be deemed to have either conceded that there were no disputed questions of fact as to his other defenses, or consented that the court might become the trier of the disputed questions of fact as to those defenses. Hence the most favorable position which can be accorded to defendant on this appeal is to review the findings of the court below upon the questions of fact, as to his defenses other than that of duress, as against the weight of evidence, and as against the law, and to determine whether the court was justified in ruling as matter of law that defendant’s proof of his defense of duress, admitting its truth, was insufficient to maintain that defense. The findings of the court of the facts as to the defenses other than duress, by directing a verdict against the defendant, are not against the weight of evidence, and are amply justified by the evidence. Hence is reached the consideration of the question whether the court was justified in ruling, as matter of law, that the defendant had failed to make out his defense of duress, and in considering the same it must be assumed that all of his evidence relating strictly to that defense is true and he must be accorded the most favorable inferences therefrom. The following is, verbatim, the testimony of the defendant, the only witness for the defense.

Albert C. Squier, being duly sworn, testified as follows: “ I am the defendant in this action; I know Mr. Foerster; I never promised to pay Mr. Foerster any money ; I never owed him any money ; I never said in the presence or hearing of Mr. Foerster that Í owed Mr. Osborne any money ; I have heard Mr. Foerster’s statement in regard to an interview that was about two months before the making of this note; that he saw me and threatened to stop the work, and that I said to wait a couple of weeks or so, and left it to be inferred that I said I would pay him if he would do so; I made no such promise; I did not promise to pay him any money; did not owe him anything; Mr. Foerster has testified that at an interview had with me about two months before the making of this note, he threatened to stop the work unless he had some money, or something of that kind, and that 1 asked him to wait a couple of weeks, and said, or intimated, that I would pay him or see that he was paid if he would go on with the work.

*‘Q. Did that take place ? A. Not those words; no, sir.

“ Q. How do you modify it, or what was the fact in respect to the interview ? A. It was Squier & Whipple’s buildings ; I am a member of that firm; Mr. Osborne was there; there was no money due Mr. Osborne, and Squier & Whipple refused to give any note because there was nothing due; Foerster threatened to put a lien on; I said that if he would allow the work to go on, there would be money coming to Mr. Osborne, probably, and it would be fixed if there was; that there would be money coming to him; that there was not then; this was at an interview two months before the note; I recollect the interview over in Eightieth street, or in some street over in that neighborhood ; Mr. Osborne, Mr. Foerster and Mr. Middlebrook were present.

Q. Is your recollection of that interview substantially the same as Mr. Foerster’s ? A. Well, nothing material to alter it, because we refused to give a note to Mr. Osborne, as there was nothing due; there was something said about coming down town; the day that this note was endorsed I was in rny office; Mr. Osborne, Mr. Foerster and Mr. Middlebrook were present

“ Q. Now tell us what took place, and how you came to endorse this note, and what was said by Mr. Foerster ? A. I said at that time our firm did not owe Mr. Osborne anything; that was the beginning of the conversation; Mr. Foerster threatened to put a lien on the buildings if he did not get money from somebody; that I recollect, and then there was considerable talk to see if he would wait until money was coming to Mr. Osborne; he said he could not; he needed something to put in his bank, something to carry himself along; and after considerable talk the note was endorsed by Mr. Foerster’s request, that he wanted to put it in his bank, and that Mr. Osborne would take care of it, as Mr. Osborne said so.

“ Cross-examination: The buildings that I have been talking of are four-story buildings principally; some three-story; one the west side of Eighty-sixth street, Eighty-fourth street and West End avenue; about the time of this transaction I was erecting those buildings; I was one of the partners; a partner of the firm of Squier & Whipple; I was interested in the work that was proceeding about the buildings; I did not know as plaintiff had ever been doing any work on them; I did not know that he had anything to do with the buildings; I simply knew he threatened to do something; he had nothing to do with those buildings; I did not know anything at the time he had ; he threatened to put a lien on; I heard he had furnished diamonds to Mr. Osborne to put in saws to saw stone ; I don’t know as he furnished anything for those buildings; I never knew it; it was not my impression that he was a total stranger at the time, coming and saying to me that he wanted to put a mechanic’s lien on the buildings; I knew he had something to do with Mr. Osborne; he did not pretend I owed him anything; I did not know that the something he had to do with Mr. Osborne related to those particular buildings; I understood that he was doing work for Mr. Osborne; I swear that at the time of that interview at my office with the plaintiff I, nor my firm, did not. owe any money to Mr. Osborne; I was induced altogether by the threat that Mr. Foerster would put a mechanic’s lien on the buildings to make this endorsement; that was the sole inducement; I was afraid he might carry out that threat; I thought he would; he acted as though he would; if it had not been for this fear, I would not have made the endorsement on that note.

“ The reason that I expected that there would be money coming due to Mr. Osborne was, that according to his contract, as he got up to a payment, we always gave him notes of Squier & Whipple, or cash, one or the other, never A. 0. Squier; well, sometimes it would be done, but as a usual thing the notes were given by Squier & Whipple when there was anything due. Mr. Osborne was contractor or agent in erecting these buildings for Squier & Whipple; under that contract I expected that payments would be due to him from my firm; that was the situation at the time when this endorsement was made. Afterwards, he continued this work about the building, but he never finished; they have never been finished by Mr. Osborne; the work went on after this transaction took place. Osborne continued to erect the buildings. Whether the plaintiff furnished diamonds after that, I don’t know; I believe Osborne got some diamonds somewhere else.

“At the interview in Eightieth street something was said about going down town to my office; Foerster talked very much ; he said he would stop all the work, put liens on and such things; I said I would go round and see if something could be done to keep him from putting a lien on; that was the principal thing; Mr. Foerster said he must have some money or paper or something or other; he made a claim against Osborne for the money due to him; I don’t remember just how much ; he said, of' course, Osborne owed him; he did not say we did.”

It must be remembered that as defendant requested to go to the jury only upon his defense of duress, the court below has, as the judge had, the right to, under the circumstances and as the evidence justifies, hold that defendant before delivery to the plaintiff, payee, endorsed the note for the purpose of giving the maker credit with the payee, that the same was duly presented, protested and notice thereof duly given, and every other fact necessary to maintain plaintiff’s cause of action and disprove all of defendant’s alleged defenses, except that of duress. Does defendant’s proof make out his defense of endorsement under duress ? It is not contended that it.shows coercion by law or duress of person ? Does it show duress of property by coercion in fact ? The appellant contends that it does, and cites only two cases to sustain his contention. One, the case of Adams v. Irving Bank, 116 N. Y., 606; 27 St. Rep., 733, was an action by a wife to recover back money paid to the bank, a creditor of her husband, under a threat to arrest him on board of the steamer upon which he and she were to sail for Europe, and the judge writing correctly states the rule to be, that in relation to husband and wife or parent and child, each may avoid a contract induced and obtained by threats of imprisonment of the other, and it is of no consequence whether the threat is of a lawful or unlawful imprisonment. The other, Gates v. Dundon, 42 St. Rep., 660, was upon a note obtained from defendant upon false and fraudulent representations, and proof of their false and fraudulent character was admitted to be in the handwriting of plaintiff’s book-keeper, and the general term refused to disturb a verdict rendered for defendant In the case at bar, there is no allegation or proof that plaintiff made any false or fraudulent representations, but simply that he threatened to file a mechanic’s lien against defendant’s property to reach money which might be or become due the maker of the note, who was the contractor for defendant in building the houses. How is it possible that defendant, an extensive builder of houses and an experienced business man, could have been coerced into endorsing the note by reason of plaintiff’s threat to file a mechanic’s lien ? For he must have known of his legal right of defense to all such proceedings, when begun without good cause. Gan it be possible that a simple threat to begin an action is such coercion in fact as to make out a defense of duress of property in a case wherein no fraud or false representations are alleged ? In all the leading authorities on duress of- property the conditions seem to have been that the owner has been coerced into payment or promise to pay in order to regain possession of his property which had been unlawfully taken or detained, and, moreover, in nearly every one of these cases there was no consideration for the payment or promise except such as might be implied from the surrender of the identical property, and this only upon the theory of a dispute and doubt as to whether the taking or detention was lawful, or unlawful. But in this case the court has held and rightly held, as matter of fact, that the defendant’s endorsement was made to give the maker credit with the plaintiff, and that it had accomplished its purpose, and hence was made for valuable consideration.

The defendant himself says that two months before the making and endorsement of the note plaintiff refused to further supply goods to the maker, unless he was paid or secured, and then said he would file a mechanic’s lien, and that he repeated this threat at a second interview and reiterated it at the time when the note was endorsed and delivered to him. It does seem that defendant had plenty of time during those two months to inform himself as to his legal lights in the matter, and as to whether plaintiff had lawful right to file a mechanic’s lien or not Moreover, this note was made and endorsed by defendant and delivered to plaintiff on May 10, 1890, and had three months to run, falling due and being protested on August 13, and notice thereof given to defendant on the next day, yet no objection or complaint is heard from him, and on August 25th, twelve days after non-payment and protest, the defendant pays by his own check, drawn to the order of the plaintiff, $250 on account of this dishonored and protested note, although he contends that his endorsement had been coerced from him by a threat to file a mechanic’s lien against his property first made five months previous, and reiterated more "than three months before the voluntary payment by him on account thereof. Parsons, in his work on Contracts, says at page 395, “ That a contract made under duress is not, however, strictly speaking, void, but only voidable; because it may be ratified and affirmed by the party upon whom the duress was practiced.”

Chief Judge Van Brunt quotes § 21, title Duress, of Am. & Eng. Encyclopaedia of Law, vol. 6, p. 88, with approval in Oregon P. R. R. Co. v. De Forest, 32 St. Rep., 185, as follows: “Where a contract is sought to be vacated as procured under duress, the party wronged must proceed promptly. If he remains still and recognizes the contract by making payments thereunder, he must be held to have waived the duress.” One of the main grounds for holding that the duress had been waived in that case was that the railway company had continued to pay the semi-annual coupons on the $100,000 of bonds which it claimed had been obtained from it while under duress; and this case was affirmed in 128 N. Y., 83. The payment of $250 on account of the note by the defendant in this action would seem to be stronger evidence of his ratification and recognition of the validity of the note than the payment by the railway company of the semi-annual coupons upon the bonds obtained from it while under duress was evidence of its ratification and recognition of the validity of the transaction under which the bonds were so obtained, for the railway company offered as an explanation for the payment of these coupons on the $100,000 bonds so obtained, that to default in the payment of these coupons might taint the very validity of the other $2,"900,000 bonds of the same issue, would impair their credit and ready sale, and ¿night absolutely prevent their sale, which was necessary in order to construct and equip the railroad. But this defendant did not deny the payment on account of the note after its dishonor and protest, and offers no explanation whatever for making such payment, and hence is left standing the legal presumption which arises from an unexplained voluntary payment on account of a voidable contract, that the same has been ratified and recognized as valid. The judgment and order appealed from are affirmed, with costs.

McGrOWN and Fitzsimons, JJ., concur.


author: Ehrlich, Ch. J.

text:
    Samson Toplitz, Resp’t, v. Leopold Ullman, App’lt.

      (City Court of New York, General Term,

      Filed June 18, 1892.)

    Master and Servant—Wrongful discharge—Damages.
    A discharged employee is bound to make reasonable efforts to keep down the damages, ansi if, after every exertion on his part,.he credits the result of his labors, he does all that the law requires of him. He cannot be required to credit the actual value of the services rendered by him without regard to their pecuniary result.
    Appeal from j udgment entered on verdict in favor of plaintiff.

      Horwitz & Hershfield, for app’lt; M. H. Oppenheim, for resp't.
   Ehrlich, Ch. J.

The action is for wrongful discharge, and presumptively the plaintiff is entitled to whatever sum became due by the contract of employment Costigan v. The M. & H. R. R. Co., 2 Den., 609.

The plaintiff endeavored, but failed, to obtain similar employment elsewhere and earned only two hundred dollars during the contract, which was applied in mitigating the damages.

It is claimed, however, that because the plaintiff, after his discharge, entered into a partnership arrangement with one Davis, the defendant is entitled to deduct from the damages claimed not only what the plaintiff earned in such copartnership, but the actual value of the services rendered therein without regard to their pecuniary result.

We cannot assent to this view. The plaintiff credited the defendant with all he earned and received, and this is all he was required to do. The doctrine laid down in Huntington v. Ogdensburgh & L. C. R. R. Co., 33 How. Pr., 416, does not conflict with this view, and the dicta relied on by the defendant has no application to a case like the present, where the services rendered to the second employer have been performed and completed, and the exact earnings of the servant ascertained and adjusted.

The dicta applies where the earnings of the discharged employee have not been ascertained, in which case it would be implied that such services of the employee would realize their reasonable value, and, in the absence of a more certain basis for calculation, this would be adopted as the correct measure of the earned but unadjusted compensation. But that case goes no further. It. adheres to the rule “ that the party who sustains a loss by the willful violation of a contract by the other, is justly entitled * * * for liberal and complete indemnity for the failure of such other,” and that the damages resulting from the breach are to be regulated by the “ actual loss.”

A discharged employee is bound to make reasonable efforts to keep down the damages, and if, after every exertion on his part, he credits the result of his labors, he does all the law requires him to do. To permit the employer to deduct from the damages not only what the employee earned after his discharge, but what the efforts of the employee ought to have produced, would be awarding a wrong-doer an advantage not secured by the person free from fault nor sanctioned by any rule of morality or law. Such a principle has not as yet found its way into our system of jurisprudence and probably never will.

We have examined the briefs of counsel and carefully considered the exceptions taken, but have failed to discover any error that has operated to the injury of the defendant

The judgment is right and must be affirmed, with costs.

Van Wyck and Fitzsimons, JJ., concur.


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    Cornelius Van Reypen et al., Resp’ts, v. Sophia A. Vandermark, App’lt.

      (City Court of New York, General Term,

      Filed June 18, 1892.)

    Brokers—Commissions—Double employment.
    Plaintiffs acted as brokers in the exchange of certain real estate. In an action for commissions the proof was abundant as to their employment by defendant; that their services brought about the exchange, and that defendant knew of plaintiff’s employment as broker by the other party to the exchange. Meld, that a verdict in favor of plaintiffs would not be disturbed.
    Appeal from judgment upon a verdict directed by the court for plaintiff and from order denying new trial.

      J. C. De La Mare, for app’lt; James Flynn, for resp’ts.
   Van Wyck, J.

The action is to recover agreed commissions as a broker for sale by exchange of real property. Both parties requested the court to direct a verdict for them respectively, and plaintiff’s request was granted. This verdict will not be disturbed unless against the weight of evidence or against the law. The proof is abundant as to the employment, amount agreed upon for the commissions, and that the plaintiff’s services secured the exchange, and that the defendant knew of the employment of plaintiff as broker for the exchange of the purchaser’s property. The plaintiff, his partner, and the purchaser all testify that defendant agreed to pay a fixed amount as commissions. The plaintiff and his partner testify as to the employment, and to the! fact that plaintiff’s negotiations and efforts brought about the exchange. The purchaser testifies that he informed defendant’s agent, who was fully authorized, that plaintiff was his broker for the sale of his property which was exchanged. There is no exception in the case except to the refusal of the court to dismiss the complaint. The judgment and order appealed from are affirmed, with costs.

McG-own and Fitzsimons, JJ., concur.


text:
    Robert Fulton, Resp’t, v. Garret P. Lydecker et al., App’lts.

      (City Court of New York, General Term,

      Filed June 18, 1892.)

    Evidence—Proof of agency—Declarations of alleged agent.
    The fact of agency or the extent of authority cannot be proved by the declarations of the alleged agent.
    Appeal, from judgment entered on verdict for plaintiff and from order denying new trial.

      Joseph M. Williams, for resp’t; Wm. B. Ellison, for app’lts.
   Van Wyck, J.

This action is for the conversion of a ton of wrapping paper. The plaintiff had orally agreed to sell and deliver to Cook & Smith, at No. 25 Park Place, New York City, the paper for ninety dollars and had confided the paper to the care of the defendant’s expressmen, to make such delivery for him. This case was up before for review and sent back for a new trial, which was had, and the judgment appealed from was entered on the verdict for plaintiff returned at such new trial. The record now before us is substantially the same as was before us on the former appeal. If anything, the evidence is stronger for plaintiff and bears more heavily against defendants’ contentions than it did upon the former trial. Upon the first trial the plaintiff was non-suited, which however was reversed on the first appeal upon the ground that a disputed question of fact had been presented by the evidence, whether there had been a rightful delivery by the defendants, common carriers, of the paper to Cook & Smith, or a wrongful delivery.of the same to other persons. The opinion of the general term of this court, filed on the former appeal in this action, would seem to fully answer all of appellant’s contentions, on this appeal, except perhaps the one that it was error to strike out the testimony given as to the declarations,, of the two boys who came down the hatchway in their shirt sleeves, that they were employed by Cook & Smith. This motion to strike out was properly granted, for an agent’s declarations are not admissible to prove his authority, and the fact of agency or the extent of authority cannot be proved by the declarations of the alleged agent. The trial judge properly submitted the disputed questions of fact involved to the jury, and the verdict returned for plaintiff is not against the weight of evidence. Referring again to the general term opinion filed on the former appeal of this case on December 17, 1891, and reported in 17 N. Y. Supp., 451, and 41 St. Rep., 457, we conclude that the judgment and order appealed from and now before us must be affirmed, with costs.

Fitzsimons, J., concurs.


author: Vah Wyck, J.

text:
    David H. Carroll, Resp’t, v. Ann T. O’Shea, App’lt.

      (City Court of New York, General Term,

      Filed June 18, 1892.)

    Brokers—Commissions—Employment.
    Plaintiff was the procuring cause of sale of defendant’s house and lot. It appeared that defendant’s husband was her general agent for the sale, and at the time of execution of the contract, when all the parties were present, he introduced plaintiff to defendant as her broker. Held, sufficient to warrant a finding that plaintiff was defendant’s broker and not the purchaser’s.
    Appeal by defendant from judgment entered upon verdict and order denying new trial.

      Waldorf H. Phillips, for resp’t; Fellows, Gray & Hartman, for app’lt.
   Vah Wyck, J.

This action is to recover commissions earned as broker for negotiating the sale of defendant’s house and lot to one Pollock. There is no dispute as to the fact that plaintiff’s negotiations brought about the sale, but defendant contends that there was no employment of the broker by her, and that plaintiff was not her broker to sell, but Pollock’s broker to purchase. The proof shows that defendant’s husband was her general agent to sell this particular house, for he says that he had authority from her to sell this property, and that he acted for her in the sale of the property; and the same is substantially admitted by her answer.

It seems that the defendant and her husband and Pollock and the plaintiff met in the office of defendant’s lawyer for the purpose of executing the contract of sale, and that at the interview there had the defendant’s husband introduced the plaintiff to her lawyer as his broker in this transaction, and to the defendant as her broker. The trigl judge instructed the jury to find for defendant if they should conclude that plaintiff was the broker of the purchaser, and that plaintiff must prove direct employment by the principál or authority from the principal to treat with an authorized agent The jury found for the plaintiff, and the verdict is not against the weight of evidence. The conversations had with defendant’s husband by plaintiff when he demanded payment of his commissions were properly admitted, for the same were a part of the same transaction and within the scope of the husband’s authority, and so, too, it was proper to allow the cross-examination of the husband In reference to these conversations. The judgment and order appealed from are affirmed, with costs.

McGown and Fitzsimons, JJ., concur.


author: Fitzsimons, J.

text:
    Henry A. Capel et al., Resp’ts, v. Jeremiah C. Lyons et al., App’lts.

      (City Court of New York, General Term,

      Filed July 5, 1892.)

    1. Trespass—License.
    A builder who receives permission to enter upon adjoining premises for the purpose of shoring them up is bound by the conditions annexed to such permission, and if he enters to a greater extent he becomes a trespasser and is liable for any consequential damages.
    2. Same.—Damages.
    In such a case, the damages may include loss of profits to the owners of the premises on business which is prevented by such trespass.
    Appeal from judgment in favor of plaintiffs, entered upon verdict.

      Charles E. Souther, for app’lts; B. Lewinson, for resp’ts.
   Fitzsimons, J.

The defendants are building contractors, and owned premises adjoining plaintiffs’ premises. While engaged in the erection of a building on their lot, next door to the building where plaintiffs were carrying on their business, they found it necessary to shore up the plaintiff’s building, and requested permission to do so, which request was granted, upon condition that the needles should enter building to the extent of one foot, and to put up a temporary partition against the inside of such needles, and replace certain drying apparatus.

It appears that the needles were run in plaintiffs’ premises to the extent of about eight or nine feet; no partition was built, and the steam apparatus was not replaced, and, as a consequence of their wrongful acts, plaintiffs claim that certain orders which they had could not be carried out, and that they suffered damage.

The jury rendered a verdict for plaintiffs for $670.80. Evidently the jury believed the plaintiffs' version of the contract made between plaintiffs and defendants.

Therefore, the defendants, under such contract, had the right only to enter plaintiffs’ premises within the terms of such contract, and their entry to any greater or larger extent made them tres passers and tort feasors, and liable for any consequential damages permitted by law.

The damages sustained by plaintiffs because of their inability to carry out their definite contracts, and consequent loss of profits under the same with their customers, which failure was brought about by defendants’ wrongful acts, is properly provable. Schile v. Brokhahus, 80 N. Y., 614. Such damages, the jury believed, amounted to $650.

The failure of defendants to replace the steam drying apparatus was also a matter for which they were liable, and the damages assessed by the jury, $20.80, seem to be proved. We find no errors.

Judgment must be affirmed, with costs.

Ehrlich, Oh. J., and McCarthy, J., concur.


text:
    The Brooklyn Heights Railroad Co., Resp’t, v. The City of Brooklyn, Appl’t.

      (City Court of Brooklyn, General Term,

      Filed April 25, 1892.)

    1. Railroad—Street—Location of power station.
    Plaintiff was granted the franchise to run a road from Court street to the ferry on Montague street and in streets “adjacent” to Montague street, west of the crest of the hill. Its power station was to be located west of the crest of the hill, at a point to be approved by the commissioner of city works. The commissioner approved of a location for the power station in State street, which runs parallel to Montague. Held, that as no streets touched the road to Montague street west of the hill, the word “adjacent ” must be construed to mean the neighboring streets, or those near the road at that point.

      2. Same—Consent.
    But one consent to lay plaintiff’s tracks can be required, and hence the franchise having been granted, and the tracks and car house located with proper authority, the common council could not by a subsequent ordinance withdraw its consent, and require another.
    Appeal from judgment restraining defendant from preventing plaintiff from laying certain tracks in Furman and State streets, to connect its main line with its power station and storehouse for cars.
    In 1890 after the passage of the franchise, but before plaintiff commenced the work of laying its tracks, the common council passed an ordinance which prohibited any person or corporation from entering upon or tearing up any street for the purpose of laying or relaying railroad tracks, without first submitting the plans therefor to the common council, and having the same approved by it.

      H. D. Hotchkiss, for resp’t; A. F. Jenks and W. T. Gilbert, for app’lt.
   Van Wyck, J.

The plaintiff was duly incorporated, and acquired by purchase and by resolutions of the Brooklyn common council its franchise under and in pursuance of the provisions of the Laws of 1884, chap. 252, and Laws 1886, chap. 642. By the terms of the franchise and resolutions, express consent and authority were given to plaintiff to construct a cable road from Court street through Montague street to Wall street ferry, and also to construct “ connections, sidings, switches, turnouts and turn-tables * * * necessary for the housing and care of its ears,” in locations approved of by the commissioner of city works, in the following territory, viz.: In the streets adjacent to Montague street west of the crest of the hill leading to the ferry. This short road has been completed and in actual operation since July, 1891; it runs on a level street from Court street to the crest of the hill, and then down a heavy grade to the ferry, on a viaduct crossing over but one street (Furman street), at an elevation of some thirty or more feet above the level of that street. The power station and car-house were located west of the hill on State street, about 1270 feet from the line of the road, and also the necessary sidings, turn-tables, switches and turnouts to reach the same, with the due approval of the commissioner of city works.

The city contends that, notwithstanding such locations with such approval, plaintiff has no right to connect with the car-house, because State street is not “ adjacent to Montague ” in the sense of touching that street. The road from Court street to the top of this hill runs through one of the finest residential portions of the city, which was doubtless the reason for the prohibition of the housing of cars east of the hill or the use of adjacent streets east of the hill for sidings, etc. The conformation of the ground and viaduct over which the road runs westerly from the top of the hill down to the ferry absolutely precludes the use of any locality for housing cars, except such as can be reached from the end of the road at the ferry, and as no street touches the road to Montague street at any point west of the hill, therefore, it seems to us, the word adjacent ” must be construed to mean the neighboring streets, or those near to the road west of the hill. If this is not so, then the authority and consent given by the resolutions to house cars and construct sidings and turnouts to reach the same in the location approved of by commissioner of city works would be an idle jumble of words. Such a restricted definition of the word “ adjacent ” will not be allowed to destroy the grant and consent intended to be conferred in respect to the housing of cars and the construction of turnouts for that purpose.

The trial court has decided that the locations of the car-house and turnouts to reach it are the most practicable and the best adapted to prevent interference with residences that, could be found, and that they were approved of by the commissioner. The common council has given a permission to plaintiff to locate its car-house and turnouts to reach it, at such points in the designated territory as were approved by the commissioner of city works, and the subsequent ordinance of 1890 could not operate to withdraw this consent and require another consent from the common conncil. This plaintiff was organized, and acquired the right to build the road under the Laws of 1884, chap. 252, and 1886, chap. 642, and is, therefore, excepted from the provisions of the Laws of 1888, chap. 583, tit. 22, § 24, for it is expressly provided that they do not apply to roads then or thereafter authorized by law. Section 24 is simply a re-enactment (in the consolidation of local laws in the act of 1888) of a provision existing before the acts of 1884 and 1886, and does not repeal these acts, and besides, § 35 of Laws of 1888 provides that nothing in the repealing clause thereof shall modify, or in any manner affect, any general statute.

For these reasons, we think the judgment should be affirmed, with costs.

Osborne, J., concurs.


text:
    Gustav Hurlimann, App’lt, v. Isaac Seckendorf et al., Resp’ts.

      (City Court of Brooklyn, General Term,

      Filed April 25, 1892.)

    1. Pleading—Demurrer.
    A demurrer to a defense of breach of warranty on the ground that it is insufficient in law on the face thereof, because founded on an oral contract of warranty, is bad where the face of the pleading does not disclose that the warranty was oral.
    2. Same—Fraud.
    A defense in an action for rent which alleges that plaintiff made false representations, known to him to be false, with intent to induce defendant to take a lease, and that defendant relying thereon was induced to take such lease, Reid, on demurrer, sufficient to set forth a defense founded on deceit.
    Appeal from interlocutory judgment overruling demurrer to new matter set up as a defense, and to two counterclaims for damages.
    Action for rent. The second defense, which was demurred to, alleged that plaintiff, with the intent to induce the defendants to rent the premises in the complaint mentioned, “ did falsely and knowingly warrant and represent to' the defendants that the premises in the complaint mentioned were and that they would continue to be free from all dampness and moisture, and that they were and would continue to be thoroughly dry and that said premises were and would continue to be adapted for the purposes of defendants’ said business as aforesaid, and of such a character that the defendants could well and properly conduct their said business and manufacturing process therein, and these defendants relying upon and believing in the said representation and warranty of the plaintiff, were induced to make and then did make and enter into the aforesaid lease, and did enter into possession of the demised premises, and they would not have done so but for said representation and warranty.’’ ■ And further, that as a result of the aforesaid warranty and false representations, the defendants, before the rent claimed in the complaint became due, did elect to rescind the aforesaid agreement, and on or about September 1, 1890, they vacated and surrendered to plaintiff the demised premises.

      James G. Foley (Henry A. Powell, of counsel), for app’lt; M. S. & I. S. Isaacs (A. L. Sanger, of counsel), for resp’ts.
   Van Wyck, J.

Plaintiff leased premises to defendants for twenty-three months from June 1, 1890. This is an action to recover a month’s rent falling due September 1, 1890. The answer contains seven defenses, separately numbered. A demurrer was interposed to the second of these, “on the ground that it is insufficient in law on the face thereof.” Plaintiff frankly takes the position that this defense is founded solely on an oral contract of warranty of the condition of premises demised in the written lease, and proof of it is inadmissible. The face of the pleading does not disclose that it was oral; therefore the demurrer is bad. He also insists that if the words of contract are eliminated, a defense founded on deceit is not set forth. We entertain a different opinion, for it is alleged plaintiff made certain false representations, known to him to be false, with intent to induce defendant to take the lease of the premises, and relying thereupon was induced to take a lease, which he otherwise would not have done. It is not necessary for us to determine whether there are two defenses pleaded in this “second” defense, one on contrast and the other for deceit, and if only one, whether it is the former or the latter, for in either case the demurrer is bad. What has been said with regard to the “ second ” will apply with the same force to the demurrer to the “ fifth ” and “ sixth ” defenses. Judgment must be affirmed, with costs of appeal, and with leave, on payment of such costs, and thirty-five dollars costs allowed in the judgment within twenty days after service of order of affirmance, to withdraw demurrer -to counterclaim and reply to same.

Osborne, J., concurs.


author: Van Wyck. J.

text:
    Catherine A. H. Rehfeldt, Resp’t, v. The City of Brooklyn, App’lt.

      (City Court of Brooklyn, General Term,

      Filed April 25, 1892.)

    Municipal cobpobations—Statutes—Repeal.
    Chapter 293, Laws 1852, authorizing the improvement of certain specified streets in the city of Brooklyn, was not superseded or repealed by the general plan for improvement of streets contained in the city charter of 1854, as the plans are not inconsistent and can both stand; the former applying to the streets named, and the latter to streets generally.
    Appeal from judgment of special term in favor of plaintiff.
    A. F. Jenks (Richard B. Greenwood, Jr., of counsel), for app’lt; Chas. J. Patterson, for resp’t.
   Van Wyck. J.

Judgment was recovered by plaintiff at special term for $1,500 and interest, the amount of an award made to her in proceedings taken by the city for the widening of Henry street, and from this judgment the defendant appeals.

The proceedings resulting in this award were taken under the Laws of 1852, chapter 293, § 4, authorizing the common council, on the petition of any owner of land on Henry street, between Atlantic and Degraw streets, to open and widen Henry street between such streets ten feet on the easterly side .thereof, and to prescribe and limit the district beyond which the assessment shall not extend, and to apply to the county court for the appointment of three commissioners to apportion 'and assess upon the lands to be benefited the costs and expenses incident to such opening and widening. In 1871 such land owner petitioned the common council to so open and widen this portion of Henry street. On June 5, 1871, the common council, in expressed pursuance of §§ 4, 5 and 6 of the Laws of 1852, chapter 293, prescribed and fixed the assessment district “ along the line of the proposed opening, in width 100 feet on the easterly side thereof,” beyond which it shall not extend, and directed the corporation counsel to apply to the county court for the appointment of three commissioners to apportion and assess upon the lands to be benefited the costs and expenses incident to such opening and widening. The city, through the corporation counsel, made such application to the county court, asking that three commissioners be appointed in pursuance of the Laws of 1852, chapter 293, “to estimate the expense of the improvement, and the damages to be sustained therefrom by the owners of such lands.” The court, on June 26,1871, made such order, appointing three commissioners, reciting that it was done in pursuance of the Laws of 1852, chapter 293.

Section 4 of this act provides that the proceedings subsequent to the appointment of such commissioners shall be governed by the provisions of the Laws of 1850, chap. 144, title 4.

The commissioners made their report addressed to the common council and filed it with the county clerk, as required by § 12 of the Laws of 1850, chap. 144. The commissioners, in their report, awarded the plaintiff for her premises required for such opening and widening $1,500. They made no assessment upon the part of her premises not required for the widening for the expenses and costs of the opening. There may have been good reasons for the same; we would suggest that the remaining portion of her lot was not benefited in their opinion, and such being the case, no assessment could be made, for § 4, chap. 293, Laws of 1852, limits the assessment to such lands in the district fixed by the common council as will “ be benefited ” by the widening. This would apply to the lands of the whole assessment district, for, strange to say, the district was actually confined to the remainder of 100 feet deep lots fronting on the east side of the street, and from which ten feet were taken, reducing the lots to 90 feet in depth. Then, again, there were substantially no expenses incident to the opening and widening of the street, except the awards of damages to those whose property was taken, for by § 6, chap. 293, Laws of 1852, the ten feet strip taken off the front of each lot continued, by this provision, to be used as the court yards of such owners, if not then already built upon, and if then built on, to be occupied by such buildings. So the result of this opening and widening was to take the fee of the ten feet from the former owners, and prohibit any encroachments thereupon thereafter by erection of buildings. The total sum of awards for damages-of land taken was substantially the total cost of the improvement, and no assessments could be made if the commissioners were of the opinion that a lot fronting on the street was not benefited by reducing its depth ten feet. The report of the commissioners was, by the supreme court, October 17, 1874, duly confirmed and directed to be delivered to the common council on the motion of the corporation counsel, and after hearing those objecting thereto, in pursuance of Laws of 1850, chap. 144, § 12 to 15, both inclusive. This gave the city absolute authority to make the improvement, and as has already been shown, the improvement was then made by taking the title of the ten feet strip from the owners and prohibiting the erection of any building thereon after that. Section 16 of the same act provides that the city comptroller shall pay the awards without deduction therefrom by way of fee or' commission. This, in our opinion, deprived the plaintiff of her property, and adjudicated that she was entitled to $1,500 from the city for compensation therefor. Sage v. City of Brooklyn, 89 N. Y., 189. The proceeding resulting in the award sued for was taken in pursuance of Laws of 1852, chap. 293, a special act providing for opening and widening Henry and two or three other streets specified therein, and the provisions of Laws of 1850, chap. 144, title 4, which are incorporated in the act of 1852 by reference thereto.

The city’s defense to this action is based upon the contention that the provisions of the act of 1852 are superseded and repealed by the adoption of a general plan for opening and widening streets generally, and imposing assestments and making awards incident, thereto, "found in the Brooklyn charter, Laws of 1854, chap. 384, title 4, as amended by Laws of 1862, chap. 63, § 15 ; that instead of sending the report of commissioners to the common council, after its confirmation by the supreme court, according to the requirements of the acts of 1852 and 1850, it should have been sent-to the board of assessors to be acted upon as required by § 15, chap. 63, Laws 1862, viz., to apportion the assessments and strike-a balance between each assessment and award on each piece of land.

We do not think the act of 1852, which is a local and special act for the improvement of Henry and two or three other streets-specified by name therein, and containing a complete scheme of making assessments and awards for damages, was superseded or repealed by the general plan for improvements of streets generally contained in the laws of 1854 and 1862. The plans are not inconsistent : both can stand together, the latter applying to the streets-generally and the former to the streets specially named in the act. Both are valid and the general plan of 1854 at best is only cumulative to the special plan of 1852.

This view seems to be sustained by the saving clause of Laws-of 1854, chap. 384, tit. 11, § 14, which declares the same to be a public act, and that all acts and parts of acts not inconsistent with the provisions thereof shall remain in full force and effect. This-construction is further supported in Matter of Central Park, 50 N. Y., 493; Knapp v. City of Brooklyn, 97 id., 520; Van Denburg v. Greenbush, 66 id, 1; People v. Quigg, 59 id., 83; Whip- pie v. Christian, 80 id., 523, and McKenna v. Edmundstone, 91 id., 231.

It appears rather late for the city to now object to the adjudication of plaintiff’s right to this award by judgment of the supreme court confirming the report of the commissioners rendered on the motion and at the request of the city. The city instituted the proceedings under the act of 1852, and boldly pursued its provisions to the very end, reciting the fact in every step taken, and hesitates only when the owner, deprived of his property rights, asks the city to pay over, under Laws of 1850, chap. 144, § 16, the compensation awarded at its instance for the property taken without the consent of the owner under the right of eminent domain.

The judgment must be affirmed, with costs.

Clement, Ch. J., concurs.


text:
    John Ryan, by Guardian, App’lt, v. The H. W. Johns Manufacturing Co., Resp’t.

      (City Court of Brooklyn, General Term,

      Filed April 25, 1892.)

    Master and servant—Negligence—Obvious dangers.
    Plaintiff, an inexperienced youth, was set at work at a barrel shaped machine used to grind asbestos by means of spikes revolved by steam power, with instructions to open the shutter of the opening through which the contents were discharged from time to time, and shut it. He was directed to clear the sill of such matter with his hand, and forbidden to use a stick for that purpose. The spikes could not be seen through the opening. While so cleaning the sill his hand was caught by the spikes and his arm wrenched off. No information as to the proximity of the spikes to the,sill had been given him. Held, that the danger from that cause was not so obvious and apparent that it could be said, as matter of law, that he assumed the risks thereof, and that it was error to nonsuit on that ground.
    Appeal from judgment dismissing the complaint.

      A. H. Dailey, for app’lt; C. C. Nadal (Thos. S. Moore, of counsel), for resp’t.
   Van Wyck, J.

This is an action to recover damages for personal injuries alleged to have been received through the negligence of defendant. At the close of plaintiff’s case a motion was made to nonsuit him on three grounds; that defendant was not negligent ; that plaintiff was negligent, and that the dangers of the machine causing the accident were so obvious and apparent that he assumed the risks thereof. The trial court granted the motion “ on the ground that the dangers of the machine were open and apparent." Should the complaint have been dismissed on any of the three grounds, is the only question presented to this court. There is no conflict between counsel as to the rules of law governing such cases, but they seriously differ as to their application to the facts of this case. They both agree that if defendant was not negligent, or if the plaintiff was negligent, or if the dangers of the machine which produced the accident were so obvious and apparent to plaintiff, an employee of defendant, that he should have appreciated them, then the nonsuit was properly granted. This requires a careful consideration of the evidence and inferences therefrom tending to establish the reverse of each of these three propositions rather than the citation of the innumerable cases that have been before our courts where the application of these now well settled principles has been involved.

Negligence is a failure to exercise that degree of care which persons of ordinary experience and prudence ought to exercise under similar circumstances. Did the defendant use such care towards the plaintiff, and did the plaintiff use such care in the performance of his work, are questions calling for a critical examination of the circumstances of this case. Were the dangers of this machine so obvious and apparent that a reasonably careful person should have appreciated them, also rests upon the same circumstances. There is testimony which, if true, tends to show that plaintiff, a young man of seventeen years, was employed by defendant for a period of about five weeks preceding the accident; for three weeks he was engaged moulding with his hands asbestos pipe covering, then for two weeks in the department of the business in which the machine in question was occasionally used. The machine ground two kinds of materials, asbestos being a part of each. The machine was a closed barrel-shaped structure from three to four feet in diameter, in which there was a revolving cylinder with projecting spikes, run by steam, and making four hundred revolutions per minute. To one side of the barrel, near the top, was attached a box-formed table-bed leading to an aperture therein, on which was placed the crude material, to be shoved in by the aid of a hoe. On the other side of the barrel was an opening through which the worked material was thrown out by the rotary motion. There was a shutter to this opening, which conformed to the shape of the barrel and hung thereto by hinges, and raised upwards when open, and, when closed, the lower edge of the shutter rested on a sill only three or four inches wide and quite near the floor. The machine was fed in one room, and discharged in another. Plaintiff had no experience or familiarity with machinery, except such as he acquired in defendant’s place. He had been engaged chiefly in farm work. His first experience with machinery was when he was put to work by defendant on this machine about eight days before the accident, and, prior to that, he was only engaged on it three or four times of about an hour each; it was not in constant use. When he was grinding his kind of material he was directed not to raise the door more than two or three inches from time to time to let the same out, and then to close it, but in order to do so tightly the sill upon which it rested had to be cleared of the matter gathered upon it while the shutter was so raised.

He was instructed by the defendant to clean it off by putting his hand in this aperture of two or three inches between the lower edge of the shutter and the sill, and sliding his naked hand over the sill, and was prohibited by defendant from using a stick for the purpose. This was the only instruction given him; he was not informed of the close proximity of the revolving spikes to the sill, had never seen the spikes, and could not see them through the opening he was directed to make by raising the door three inches, and could not have looked through it without getting down on the floor in a stooping position, and then looking upwards, and, if he had even done this, a blinding storm of asbestos sawdust would have concealed the spikes. He had no thought of the danger of wiping off this sill as he was directed to do, not knowing of the nearness of the revolving spikes to it, and thinking there was no danger of anything being drawn in there, as he had only seen things expelled through that aperture. This plaintiff, while using his hand at the place, in the manner and for the purpose the defendant directed and instructed him to do, without being informed of the dangers of doing so, or of the close proximity of the revolving spikes to his hand while so wiping off this sill, either by defendant or his own observation or experience, had his fingers caught by the spikes, drawing his arm therein, which was in an instant wrenched from his body. In reviewing this evidence, we have assumed the verity thereof, and drawn such reasonable inferences therefrom as were most favorable to plaintiff.

Of course he must have known that there was some moving machinery or contrivance in the barrel of the structure which ground up the asbestos, but we do not think this circumstance was sufficient, in itself, to make, as a matter of law, the dangers from the, to him unknown, near proximity of the spikes to his hand while in the place and use he was directed to put it so obvious and apparent that he should have appreciated them, and thereby assumed the risks thereof.

In our opinion, the three questions constituting the grounds of the motion for nonsuit should have been submitted to the jury to say whether or not the defendant was negligent and the plaintiff free from negligence, and whether the dangers were obvious and apparent risks incident to his employment

Judgment must be reversed and new trial ordered, with costs to abide the event

Osborne, J., concurs.


author: Clement, Ch. J.

text:
    Lillie S. Crary, Resp’t, v. William P. Crary, App’lt.

      (City Court of Brooklyn, General Term,

      Filed April 25, 1892.)

    1. Divorce—Co-respondent need not be corroborated.
    If an action for absolute divorce is litigated, and the court is satisfied that there is no fraud or collusion, the testimony of the co-respondent need not be corroborated, but is sufficient to carry the case to the jury, where the defendant fails to take the witness stand to contradict it.
    3. Same—Evidence—Letters.
    Where the co-respondent has testified that she wrote to plaintiff admitting the charges to be true,and defendant produces a letter from her stating that if her statement to plaintiff implied that, she did not intend it should, the letter to plaintiff is admissible to show what the statement was and to show that her testimony was true.
    Appeal from judgment of special term in favor of plaintiff in ' an action for absolute divorce.

      Howe & Hummel, for app’lt; David Barnett and Wm. N. Dykman, for resp’t.
   Clement, Ch. J.

This action was brought to recover an absolute divorce, and the jury rendered a verdict for the plaintiff, and from the judgment entered on such verdict at special term this appeal is taken.

We are of opinion that the jury were fully justified by the evidence in finding their verdict that the defendant was guilty of adultery. If it be conceded that the co-respondent was not corroborated, her testimony was sufficient to take the case to the jury. There is-no claim that there is any collusion between the parties, and the case has been vigorously litigated. The defendant was not called as a witness in his own behalf. In the case of Schwier v. N. Y. C. & H. R. R. R. Co., 90 N. Y., 558, 564, the defendant did not call its engineer. Judge Danforth said, “ While the omission to call the engineer as a witness is not evidence against the defendant of any fact, it is cause for taking such testimony as , is in this case, and which, if untrue, he might have contradicted or explained, most strongly against it.” See also People v. Hovey, 92 N. Y., 554. In the case now before us the court refused to charge that unless the corespondent was corroborated, the jury should find for the defendant, and we hold that he was right in such refusal. Prior to the enactment of § 399 of the Code of Criminal Procedure, a prisoner, could be convicted on the testimony of an accomplice alone. Slape v. People, 85 N. Y., 390; People v. Everhardt, 104 id., 591; 5 St. Rep., 793.

In.an inquest at special term, in an action for absolute divorce, the court would not grant a decree on the testimony of the corespondent without corroboration, for the reason that it would be unsafe to grant divorce by default on such testimony. If an action is litigated and the court is satisfied that there is no fraud or collusion, the testimony of the co-respondent would seem sufficient when the defendant fails to take the witness stand to contradict the testimony. As in the case of Schwier v. R. R. Co., supra, the testimony on behalf of plaintiff may be weak, and yet, in the absence of contradiction, it seems conclusive. Whatever the rule may have been in the ecclesiastical courts, there is no existing law or practice that in a litigated action for divorce before a jury corroboration should be required of the testimony of a co-respondent. The case should be submitted to the jury with proper instructions.

The counsel for the appellant complains that the plaintiff was allowed to answer certain questions. We agree with him that the answer at folio 51 should have been struck out, but the counsel afterwards conceded the fact The other answers given, which were excepted to, were merely formal, and in no wise prejudiced the case .of the defendant

Mo point arises in this case as to the right of -the witness to hold a fan before her face when upon the stand, for it appears that no question was answered by her when she so held her fan.

The only ruling as to which there can be any question is as to the admission of the letter dated January 1st The counsel for -defendant offered a letter written by the co-respondent dated January 6th. The dates of the two letters are material, for before the offer of the letter of January 6th, in which was written, “ If my statement to Lillie implied that, I did not intend it should,” counsel for defendant had brought out, in cross-examination of the witness, that she had written to Lillie (the plaintiff) and told her that the charge against her was true, and that the first that she wrote.to Lillie making any statement which charged Mr. Crary with having committed acts of adultery with her was when she got to Moriah’s Corners, and had an interview with the father and mother of plaintiff, and that was some time in the early part of January. The counsel evidently brought out this testimony to show that before writing the letter (Ex. 1) of January 6th she had made a statement to Lillie, for he uses the word statement in his question. Counsel, also, wanted to show that the father and mother of plaintiff brought about the writing of the letter of January 1st. If the letter (Exhibit B) was not before the jury, they could not tell what prior statement she had made, whether the direct charge or by implication, as is intimated in the letter of January 6th.

The counsel for defendant brought out twice that she had written the letter, and its contents, and we are inclined to hold that it was proper to admit it for two reasons; first, because counsel for defendant had examined the witness as to its contents ; second, to show that her testimony that she had charged adultery directly was true. The letter of January 6th seems to intimate that she had not charged adultery directly in her former statement, which was the letter of January 1st. She had sworn, on her cross-examination, that she had directly charged Mr. Crary with adultery in her letter to Lillie. The letter of January 6th had the effect to contradict such testimony. The letter was admissible to show that her testimony was true.

The answer of Alma Anderson was not responsive to the question. Counsel moved to strike out the answer, which motion was denied. At that time he was in doubt whether the testimony was proper or not, and subsequently renewed his motion to strike out, which motion was granted, and the jury were instructed to disregard what she had said. We think that the rights of the defendant were fully protected by the learned judge.

Judgment and order denying new trial affirmed, with costs.

Van Wyck, J., concurs.


author: Osborne, J.

text:
    James A. Fisher, Resp’t, v. Clarence B. Smith, App’lt.

      (City Court of Brooklyn, General Term,

      Filed April 25, 1892.)

    Verdict—Conflict of evidence.
    In an action for commissions as broker, plaintiff’s evidence was sufficient, if believed, to establish-his claim, and defendant’s was in direct conflict with it. Held, that the verdict in favor of plaintiff was conclusive as to the facts and would not be disturbed.
    Appeal from judgment in favor of plaintiff, entered upon verdict.

      W. J. Gaynor, for app’lt; E. B. Barnum, for resp’t.
   Osborne, J.

Plaintiff brought this action to recover four hundred dollars for commissions alleged to have been earned by him as a broker in procuring a purchaser for certain real estate of which defendant was part owner. Plaintiff, on the trial, testified that a special agreement was made with him by defendant to pay the sum claimed in case plaintiff obtained a purchaser for the property at a price which defendant fixed, and he also proved that he procured purchasers for the property ready, able and willing to-pay the defendant’s price, and that defendant refused to sell at the price which he had named. Defendant denied the special agreement, and also claimed that he had never fixed a price at which he would be willing to sell. Plaintiff had a verdict, and from the judgment entered thereon and the order denying a motion for a' hew trial defendant appeals.

We think that the issues were properly submitted to the jury for their determination, and, after a careful perusal of the evidence, we can see no reason for interfering with the verdict. Plaintiff’s evidence and that adduced on his behalf, if uncontradicted, established his claim; defendant’s evidence was in direct conflict with that of the plaintiff, and the questions at issue between the parties were determined by the jury in favor of the plaintiff. The charge of the learned trial judge is not printed in-the case on appeal; no exception appears thereto, and we may, therefore, assume that the jury were properly instructed as to the-law applicable to the case. The jury having found in favor of the plaintiff on the matters of fact in dispute, we think that the verdict should be upheld.

Judgment and order denying new trial affirmed, with costs.

Yan Wyck, J., concurs.


text:
    William J. Doran, Resp’t, v. The Brooklyn & New York Ferry Co., App’lt.

      (City Court of Brooklyn, General Term,

      Filed May 23, 1892.)

    Assault—Damages.
    While plaintiff was waiting to take a ferry hoot of defendant, he was forced by the crowd through the gate for vehicles, through which foot-passengers were forbidden to pass, and was forcibly removed by an employee, although he offered to pay his fare or leave. Held, that as no malice or ill will toward him was shown he was not entitled to punitive-damages, and that a verdict for $1,500 was excessive.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.

      Wm. J. Driscoll, for resp’t; James & Thomas H. Troy, for app’lt.
   Osborne, J.

Plaintiff brought this action to recover damages-for an assault and battery alleged to have been committed on him by the servants of the defendant in ejecting him from its ferry house at the foot of Bast Twenty-third street, Mew York, on the 19th day of February, 1891. "Plaintiff obtained a verdict for $1,500 damages, and from the judgment entered thereon and from an order denying a motion for a new trial this appeal is taken.

Substantially the main point contended for by the learned counsel for the appellant on this appeal is that the damages awarded were excessive, and that, for that reason, the judgment should be reversed.

It appeared from the evidence that plaintiff arrived at the ferry house of defendant at about six o’clock in the evening, and found a large crowd outside of the passenger entrance and the gates used for the egress and ingress of vehicles ; while waiting there, the crowd kept increasing so that he was hemmed completely in; after a while the gates were forced open by the crowd in front of plaintiff, and he was carried along against his will by the people pressing on behind him, to a point some four or five feet inside the gate. At that point, the crowd spreading, plaintiff was left standing alone, and while adjusting his eye-glasses and watching the crowd running and shouting, a deck hand came up to him. Plaintiff’s account of the assault is as follows: “ The deck hand said, What are you doing here ?’ and with that he grabbed me by the coat, my overcoat that I had on, and I said, ‘Well, you take your hands off me.’ Says he, ‘What are you doing here ? ’ I says, ‘ I am here, because I was brought in. Take your hands off me,’ and he did take his hands off me, and as he took them off I turned slightly ; so he turned and said to Mr. Ohappel,

‘ Here is one of them,’ I think that is the word he used, and he says, ‘Well, we will put him out anyway,’ and Mr. Ohappel caught hold of me in here, that is, through my shirt collar and my overcoat collar here. I says, ‘ Take your hands off me,’ and he says, ‘ I will put you out.’ I says, ‘ I am willing to go out or I am willing to pay my fare,’ and I had three cents in my hands at the time, for I had changed some money in buying The Sun and so that I could pass quickly through the gates and I had kept the change in my hands. When I was outside I "bought the paper. When I tala him to take his hands off me, that I was willing to go or pay my fare, he said, ‘ No, we will put you out. Open those gates.’ They opened the exit gates for passengers on the left hand side, and he shoved me, pushed me, with his hand on my collar, toward the gates twelve or fifteen feet; about twelve feet he had to take me to the side. I was more directly in front of the gate. • He handled me very roughly and strode along. ' He was exceedingly angry at the time. Q. What was he saying, if anything? A. Well, this is about what he said: ‘We will put you out. We will put you out,’ repeating it. • When I got to this gate it was opened partially, and he gave'me a push through, and I staggered along on my feet ‘till I gained my equilibrium, and then I straightened up. I didn’t fall. That was all that happened.”

For this assault, as before stated, the jury gave plaintiff a verdict of $1,500.

We are well aware that courts are reluctant to disturb the verdict of a jury; it is entitled to be treated with consideration and respect But when it is manifestly unjust, and appears to be excessive and the result of a perverted judgment on the part of the jury, it is the duty of the court to interfere, and to modify it in accordance with the demands of justice, or to grant a new trial.

We think that injustice has been done to the defendant by this verdict, and in arriving at that conclusion we have not taken into consideration the evidence adduced on the part of the defendant denying the assault; on that issue the jury have found in favor of the plaintiff, and their finding in that respect should stand. In assessing the damages, however, we think, on plaintiff’s own statement of the assault, that it is plain that the jury, have gone beyond what we regard as a fair compensation to the plaintiff for the injuries he has suffered, and have awarded to him a larger sum than he is fairly entitled to recover. There was no evidence of malice or ill will on the part of the defendants, and, in the absence of such evidence, plaintiff was not entitled to recover punitive damages. Newman v. N. Y., L. E. & W. R. R., 54 Hun, 335; 27 St. Rep., 135. By the charge of the learned trial judge the jury were limited, on the evidence in the case, to compensatory damages only, and no exception was taken thereto, and they were expressly charged that they could not award punitive damages. It seems to us that the jury must have overlooked or disregarded this portion of the charge in assessing plaintiff’s damages. We think that the verdict should be reduced to $1,000, and as modified should be affirmed, and that unless plaintiff stipulates to reduce the verdict to that amount, the judgment should be reversed and a new trial ordered.

Judgment and order denying motion for a new trial reversed, and new trial ordered on payment of costs unless plaintiff stipulates to reduce the verdict to $1,000 and the extra allowance to fifty dollars, in which event the judgment as modified and.the order denying motion for' a new trial is affirmed, but without, costs.

Van Wyck, J., concurs.