text:
    Charles O. Day, Resp’t, v. Charles Harris, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    1. Service—Exemption.
    To entitle a foreign party or witness to a judicial proceeding to exemption from service of process it must appear that he came from without the jurisdiction upon the occasion of the proceeding which he was attending, and for the purpose of attending it.
    3. Same.
    An affidavit stating that defendant was a resident of New Jersey; that at the time of the service he was attending as a witness in a proceeding being prosecuted against him and it was served upon him while under arrest; that he came to said town for the sole purpose of appearing as such witness, but which does not state whence he came to said town, is insufficient to bring him within the exemption.
    Appeal by the defendant from a judgment of the county court of Cattaraugus county, affirming a judgment of a justice’s court.

      Inman & Cole, for app’lt; T. H. Dowd, for resp’t.
   Dwight, P. J.

On the return day of the summons, the defendant appeared by attorney, specially, to object to the jurisdiction of the justice. The objection was supported by an affidavit, of the defendant which, after stating the time and place of service of the summons upon him, viz., at the town of Salamanca, on the 2d day of April, 1890, proceeded as follows:

Deponent further says that he is now and for the past year and . upwards has been a resident of the city of Jersey City, in the state of Hew Jersey, and that deponent for the past year and upwards has not been a resident of the state of Hew York.
Deponent further says that at the time of the service of the aforesaid summons deponent was in attendance before S. H. Seymour, Esq., a justice of the peace of the said town'of Salamanca, as a witness in his own behalf, in an action then being prosecuted in the name of the People of the state of Hew York against this deponent as defendant, and before the conclusion of the said action, and while deponent was in the custody of a constable of the aforesaid town of Salamanca, and while deponent was under arrest for and upon the charge of being a disorderly person.
Deponent further says that he came to said town of Salamanca for the sole and only purpose of appearing in said action, and as a witness in his own behalf; and while deponent was at said town of Salamanca, as such party and witness, and before the conclusion of said action, and before deponent could get a train to go to his home, deponent was so served as aforesaid with said summons.

The statements of the affidavit were not controverted. The justice overruled the objection to the jurisdiction, and, the defendant not appearing further, rendered judgment against him, which was affirmed by the county court We think the ruling of the justice was correct, and that his jurisdiction of the person of the defendant was not successfully impugned by the statements of the affidavit

It seems very clear that the defendant did not bring himself within the rule of exemption from the service of civil process. That such exemption extends both to witness and parties who have come from a foreign jurisdiction to attend upon any judicial proceeding in .this state is established by the case of Matthews v. Tufts, 87 N. Y., 568; and the affidavit ascribes both characters to the defendant. But the essential condition of the rule and ground of the exemption is that the person claiming it shall have come within the jurisdiction of the court issuing the process as such party or witness. It is not sufficient that he is a non-resident of the jurisdiction; it must appear that he came from without the jurisdiction upon the occasion of the judicial proceeding which he was attending, and for the purpose of attending it. In this case the affidavit states that the defendant was a non-resident of the state, and a resident of New Jersey, but it does not state that he came from New Jersey, nor from any place without the jurisdiction of the justice, to attend the trial at which he was, or intended to be, both party and witness.

It appeared by the affidavit that the action or proceeding, the trial of which he was attending, was commenced by his own arrest as a disorderly person. Where or when that arrest was made it does not appear, but it must have been within the state of New York. Where he had been intervening the arrest and the trial or hearing before the magistrate does not appear; there is no statement that he had returned to New Jersey in the meantime, nor that he came from thence to attend the trial or hearing of his casa The only allegation in that regard is “ that he came to said town of Salamanca for the sole and only purpose of appearing in said action and as a witness in his own behalf; ” but whence he came to Salamanca, or where he had been at any time before so coming to Salamanca, does not appear, nor can it be inferred from his affidavit.

This proof, we think, was manifestly insufficient to bring him within the exemption claimed. The presumption is that every person within the territorial jurisdiction of a justice of the peace is subject to his jurisdiction for the service of process; and he who claims an exemption therefrom must overcome that presumption by affirmative proof.

The judgment appealed from should be affirmed.

Judgment of the county court of Cattaraugus county affirmed, with costs.

Maoomber and Corlett, JJ., concur.


source: Caselaw Access Project

author: Dwight, P. J.

license: Public Domain

text:
    In the Matter of the Petition of Dorcas S. Myrick.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Villages—Change of grade oe street—Appeal.
    In a proceeding to appraise damages caused by a change of grade of a street, the answer denied that there had been any change of grade, but an establishment of one. The order for appointment of commissioners, however, was made on consent. Held, that this constituted a waiver of the objection, and the question raised by the answer could not be considered by the court on appeal from the order confirming an award of damages.
    Appeal by the village of Olean from an order of special term confirming the award of commissioners appointed to appraise damages sustained by the petitioner by reason of the action of the village in lowering the grade of the street along her premises.

      F. L. Eaton, for app’lt; Frank Rumsey, for resp’t.
   Dwight, P. J.

The proceeding was under the provisions of chapter 113, of the Laws of 1883, as amended by those of chapter 281 of the Laws of 1884. The village made answer to the petition for the appointment of commissioners, denying, among other things, that there had been any change or alteration of the grade of the street in question, “ as contemplated by chapter 113 of the Laws of 1883." Nevertheless, the order appointing commissioners was, as appears by its recitals, made on the consent of the village, and no appeal was taken from that order. Commissioners being thus appointed, the village appeared before them and gave evidence on the question of damages, and the commissioners having made their report awarding the sum of $1,000 to the petitioner, which was confirmed at special term, this appeal was taken from the order of confirmation. No objection is made to the proceedings of the commissioners, nor to the amount of the award, but the contention of the appellant is confined to the proposition that the case was not within the provisions of the statute under which the proceeding was taken, for the reason that the rction of the village complained of was not a change of grade, be-3ause none had been previously established,-but was the establishnent of a grade for the first time. The contrary of this proposition has been directly held by this court at general term, in both he second and third departments, Bartlett v. Tarrytown, 52 Hun, 180; 24 N. Y. State Rep., 272, and S. C., 8 N. Y. Supp., 789; 30 N. Y State Rep., 341; McCalls. Saratoga Springs, 9 id., 170; 29 N. Y. State Rep., 699'; and we should, probably, not be disposed to dissent rom the conclusion reached by our brethren, if the question were uoperly before us. We think it is not before us, because the >rder appointing commissioners was not appealed from, but was ;ranted by consent, and this appeal is only from the order eonirming the award of damages.

The objection was one which should have been raised at the irst step of the proceeding. It was raised, or suggested, by the ■nswer to the petition, but seems to have been waived when the rder was consented to, and was certainly waived when no appeal ms taken from that order, and the question of damages was litiated before the commissioners. So we held, in effect, in the case if In re. R. L. & H. R. R. Co to Acquire Lands of Hartshorn, 26 N. Y. State Rep., 753, and so it was held in Bartlett v. Tarrytown, N. Y. Supp., 739; 30 N. Y. State Rep., 341, supra; see, also, Dyckman v. The Mayor, 5 N. Y., 434; N. Y. & E R. R. Co. v. Corey, 5 How. Pr., 177. Theorder appealed from should be (firmed.

Order appealed from affirmed, with costs.

Macomber and Corlett, JJ., concur.


text:
    George W. Crouch, Jr, Resp’t, v. Gustave Muller, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    intract—Order giver by cortractor—When rot rotice to owker.
    A building contractor gave to plaintiff an order on defendant for a sum of money due to him on his contract. The order was presented to defendant, who was a German and unable to read or understand English, and he was informed simply that it was an order and he should sign it to secure the moneys therein mentioned to plaintiff. He was not informed as to its amount or the fund it was drawn against. Held, that this was not such notice to defendant of an assignment of moneys due or to grow due on his building contract as bound him to withhold payment from the conractor, or, in default of so doing, to pay so much of his debt a second time.

      Appeal from a judgment in favor of the plaintiff entered on the findings and decision of the court, without a jury, at the circuit.

      Geo. F. Yeoman, for app’lt; C. F. Dean, for resp’t.
   Dwight, P. J.

At the date of the order hereafter mentioned there was due and to grow due from the defendant to one Schenclc, on a building contract, more than $1,000, and Schenclc owed the plaintiff $1,000 for lumber. To pay his debt Schenclc gave the plaintiff an order on the defendant for $1,000, payable out of the moneys due and to grow due on the contract. Ho question i¡ made but that, under the doctrine of Brill v. Tuttle, 81 N. Y. 457, this order operated as an assignment pro tanio of the fund nor that, in the language of the same case, “ the drawee (in sucl an order) is bound, after notice of such assignment, to apply thi fund as it accrues to the payment of the order and to no othe purpose, and the payee may by action compel such application. The only question made by the defendant is whether there was h this case such notice to him of the assignment as bound him t make the application, and gave to the plaintiff the right of actio to compel it. The facts bearing upon that question are specif cally found by the court below.

The defendant was a German, unable either to read English c to understand it when spoken. The order was written in EnglisI It was exhibited to the defendant and read to him in Englis without conveying any information to his mind. As the Englis speaking agent of the plaintiff testified, “he was simply b< wildered.” Thereupon another representative of the plaintiff, wli spoke German, undertook to explain the matter to the defendan and the finding of the court in respect to that explanation is s follows:

Seventh. That this defendant was then informed in German t an agent of the plaintiff that said instrument was an order ar that defendant should sign it to secure the moneys therein me tioned to the plaintiff,” and this, upon the findings of the corn is all the notice which the defendant had of the nature and effe of the paper which he was called upon to “sign.”

The proposition seems hardly open to argument that this w not such notice to the defendant of an assignment by his credit of moneys due or to grow due on his building contract, as born him to withhold payment from his creditor, or, in default of doing, to pay so much of his debt a second time. So far as stated in the finding, the defendant was not even informed w drew the order, nor in whose favor it was diawn nor to whom a dressed, though if resort be had to the testimony of the witne we find that the defendant was told “ it was an order from Sehen to Crouch.” But he was not informed of the amount for whi the order was drawn, nor that it was drawn upon any particu fund. These omissions we regard as fatal to the plaintiff’s cc tention. In the case of Brill v. Tuttle, supra, the court, after f mulating the rule before stated in respect to the operation of order made payable out of a particular fund, proceeds to say tl it is equally well established that a draft drawn generally, without regard to the source from which the money used for its payment is to be obtained, does not operate as ah assignment of any fund and must be duly accepted by the drawee before an action can be maintained against him.

For all the purposes of this action it is apparent that the order must be regarded as if it had been only what it was stated or explained to be to the defendant; and that was an order for no paricular sum, payable out of no particular fund, which the defendant was asked to “ sign ” in order to secure the payment of an imount not specified to the plaintiff. It is apparent that the facts bund do not meet the requirements of the rule, either in respect o the terms of the order or the notice to the defendant, which barges the drawee with liability in the absence of an acceptance if the order.

It appears that at the time of the commencement of the action here was remaining in the defendant’s hands, applicable to the lavment of the order in question, the sum of $153.90. The udgment should be reversed and a new trial granted, with costs of his appeal to abide the event, unless the plaintiff stipulates to educe the amount of the judgment on its face to the sum of 1153.90, and in that case the judgment as so modified should be firmed, without costs of this appeal to either party.

Macomber and Corlett, JJ., concur.


author: Haight, J.

text:
    James G. Kitchen, App’lt, v. Samuel S. Lowery et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed April 28, 1891.)

    Assignment for creditors—Preferences—Chattel mortgage.
    The fact that an assignment for the benefit of creditors contains preferences of just debts secured by chattel mortgages which are referred to therein does not render such assignment fraudulent, although such chattel mortgages were void as to other creditors by reason of non-filing within the statutory time.
    Chattel mortgage—Waiver of rights by creditors.
    Although chattel mortgages may be void as to creditors for the reason that they were not filed at the time their credits were given, yet if creditors neglect to avail themselves of the means provided by the statute to secure the payment of their claims until the mortgagor has transferred his interest to an assignee for creditors, they thereby lose the advantage which they otherwise might have gained.
    Appeal from a judgment of the general term, fourth depart-en!, affirming a judgment entered upon a decision of the court the Oneida special term, dismissing the complaint.

      D. C. Stoddard, for app’lt; A. M. Mills, for resp’t Sheard; W. Matteson, for assignee Harvey; William E. Lewis, for resp’t ryn.

       Affirming 25 N. Y. State Rep., 252.

   Haight, J.

This action was brought by the plaintiff as a judgcreditor of Samuel S. Lowery and George N. Lowery to set aside a general assignment for the benefit of creditors and two chattel mortgages made by them.

Samuel S. and George N. Lowery were copartners doing business under the firm name of S. S. Lowery & Son, and on the 24th day of December, 1883, they executed and delivered to the defendant Sheard a chattel mortgage on certain machinery and; other personal property owned by them to secure him for hisj ac-j commodation endorsements for the firm. The mortgage was filed August 24, 1885. The defendant Sheard at their request endorsed the notes of the firm to the amount of $15,000, which notes at their maturity were protested and thereafter taken up and paid by him. On the 1st day of September, 1884, the firm executed and delivered to the defendant Nora K. Lowery a chattel mortgage on the same property, which by- its terms was made subordinate to the Sheard mortgage. It was given to secure ar indebtedness from the firm to her which has not been paid. This mortgage was also filed August 24, 1885.

On the 24th of August, 1885, the defendants, Samuel S. anc George N. Lowery, made a general assignment of- all their prop erty to one Bartlett in trust for the benefit of their creditors This assignment was recorded on the same day, but after the fil ing of the chattel mortgages given to Sheard and Nora K. Low ery. The debt of Nora K. Lowery is preferred in the assignmenl it being stated therein that she holds as collateral security th chattel mortgage above referred to, subject, however, to the prio mortgage to Sheard. The assignors delivered to the assignee al of their property, including that covered by the chattel mor gages, and. thereafter made and filed an inventory and schedule in which they stated that the debts of Sheard and Nora K. Lov ery were secured by the two mortgages, and that the propert described in the mortgages was encumbered by such mortgage; On November 19, 1885, the defendant Sheard took the propert under his mortgage, advertised and sold it at public auction fc the sum of $8,000.

The trial court found that the mortgages and assignment wei made in good faith for an honest purpose, without any intent 1 hinder, delay or defraud the creditors of the firm of Samuel Í and George N. Lowery individually.

It is contended on the part of the appellant that the assignmei is fraudulent for the reason that it in effect transferred to the a signee the mortgaged property subject to the payment of the cha tel mortgages as though they were in all respects valid, while : fact and in law they were void as to the plaintiff’s debt for tl reason that they were not filed as required by the statute. A suming the effect to be as stated, we do not understand that tl assignment would be fraudulent. Whilst the mortgagee of chi tels is deemed the owner and has the right to reduce them to pc session, the mortgagor has the right to redeem before sale or receive the surplus, if any, that shall arise upon a sale. lie h an interest in the property which is assignable, and such intere under a general assignment for the benefit of creditors passes the assignee. Sullivan et al. v. Miller, 40 Hun, 516-519 ; 1 N. State Rep., 464; S. C. 106 N. Y., 635-642; 11 N. Y. State Rep., 312.

It follows that whatever interest the firm had in the mortgaged property passed to the assignee under the assignment. As to the mortgagors, the mortgages were valid and subsisting liens. The indebtedness which they were given to secure was honest and just, and the same could lawfully be paid out of the assets of the firm, and the assignors had no right or power to deprive the mortgagees of the lien which they had acquired by virtue of their mortgages.

It remains to be determined whether this action can be maintained by the plaintiff to set aside the mortgages and compel the mortgagee Sheard to account for the property taken under his mortgage.

They may be void as to creditors for the reason that' they were rot filed at the time their credits were given, but if creditors íeglect to avail themselves of the means provided by the statute ¡o secure the payment of their claims until the mortgagor has ransferred his interest to an assignee they therebv lose the advantage which they otherwise might have gained. In such a case he assignee acquires a superior right to the individual creditor ,nd takes the same in trust for all the creditors. Before such ransfer the creditor upon obtaining judgment might have secured lien upon the personal property of the judgment debtor by the ivy of an execution thereon. He might also have obtained a en by a like levy upon the property covered by the mortgage, 'he mortgage being void as to' him the property would be rearded as that of the judgment debtor and the levy would have re same force as if no mortgage existed. But waiting until after le assignment he loses his right to acquire a lien by levy.

As we have seen the plaintiff has neglected to perfect any lien as rainst the mortgaged property by the levy of an execution lereon. The commencement of this action does not operate to ■eate a lien upon such property ; -whilst the commencement of an ition in the nature of a creditor’s bill creates a lien upon the loses in action and equitable assets of the judgment debtor, it )es not create a lien upon his tangible personal property subject to a vy by an execution, unless he procures a receiver to be appointed. Ibany City Bank v. Schermerhorn, 1 Clarke’s Ch., 214; Davenort v. Kelly, 42 N. Y., 193-198 ; Storm v. Waddell, 2 Sand. Ch., 94-516; Lansing v. Easton, 7 Paige Ch., 364; Knower v. Central National Bank, 37 N. Y. State Rep., 89.

A creditor can only avail himself of the omission to file a mortgage Iren he has a judgment and proceeds upon that to obtain a lien ion the property either by a levy of an execution or the comencement of an action in which he obtains the appointment of a ceiver. Jones v. Graham, 77 N.Y., 628; Thompson v. Van Vechten, id., 568; Niagara County National Bank v. Lord, 33 Hun, 7-564; Sullivan v. Miller, 106 N. Y., 635-641; 11 N. Y. State Rep., 312 ; Southard v. Benner, 72 N. Y., 424 ; Geery v. Geery, id., 256.

The mortgagors, by their assignment, have transferred all of their interest therein to the assignee. The mortgagee Sheard has taken the property under his mortgage and sold it. The property mortgaged has now passed into the hands of the purchasers under such sale, and whatever rights the plaintiff may have had, none remain that are available to afford him relief.

These views render it unnecessary to consider the question as to whether the action can be maintained by the plaintiff without first demanding of the assignee that the action be brought by him as trustee for the creditors under chapter 314 of the Laws of 1858.

The judgment should be affirmed, with costs.

All concur, except Brown, J., absent.


author: Parker, J.

text:
    Thomas Martin, Resp’t, v. Lucy E. Stoddard et al., App’lts.

      (Court of Appeals, Second Division,

      Filed April 28, 1891.)

    Taxes—Sale of land fob—Abreaba&e act, chap. 114, Laws '1883-Statute OF LIMITATIONS.
    The fact that a party may appear by record to be a mortgagee does no! of itself entitle him to notice as a “person having an estate therein' under the arrearage act of 1883, chap, 114. He must be a mortgagee in ■ fact, and where the only fact which appeared was that, forty-eight years before the sale pursuant to which plaintiff obtained his deed, the mort gage described was placed on record, it will be presumed to have be i paid, and the mortgagee is not entitled to notice.
    Appeal from judgment of the general term of the city court o: Brooklyn, entered on an order affirming a judgment of the tria court in favor of the plaintiff.
    The action was in ejectment and to recover damages for at alleged wrongful withholding of real estate in the city of Brooklyn The plaintiff claimed title through a tax sale under the act, chap 114, Laws of 1883, known as the arrearage act.

      A. H. & W. E. Osborn, for app’lts; William, J. Gaynor, for resp’t.

       Affirming 34 N. Y. State Rep:, 111.

   Parker, J.

The appellants’ contention that the arrearage act chap. 114, Laws of 1883, and the proceedings had thereunder, in eluding the sale to this plaintiff, are void, has been settled ac versely to such contention by this court in Lamb v. Connolly, 12 N. Y., 531; 34 N. Y. State Rep., 140; and Terrel v. Wheeler 123 N. Y., 76; 33 N. Y. State Rep., 404.

An additional question is raised which we shall briefly cor sider. The arrearage act provides that after a sale of lands i pursuance thereof notice shall be given to' any person having a estate therein (§ 5), and that a deed shall be given to the pu: chaser at a tax sale “ upon presentation of said certificate of sal and proof of the service of the notice of such sale as hereinafte provided upon the owner and mortgagee of the said lands an premises, * * * after the expiration of one year from th date of such service.” The defendant insisting that there was mortgagee of the premises to whom notice was not given as pr< vided by statute, introduced in evidence the record of a mortgag covering the lands in controversy, dated August 3, 1837, and recorded the day following. FTo other fact appears than that about forty-eight years before the sale pursuant to' which the plaintiff obtained the deed, the mortgage described was placed on record in the Kings county clerk’s office.

The fact that a party may appear by record to be a mortgagee loes not of itself entitle him to notice. He must be a mortgagee in fact. If his mortgage be paid, although unsatisfied of record, re is not entitled to notice. And the question here presented is vhcther the evidence authorized a finding of payment? For if it lid it must be treated as having been found by the jury. The Revised Statutes (vol. 2, page 301, § 48), provided that “ after he expiration of twenty years from the time a right of action hall accrue upon any sealed instrument for the payment of money uch right shall be presumed to have been extinguished by pay-rent; but such presumption may be repelled by proof of pay-lent of some part or by proof of a written acknowledgment of uch right of action within that period.” The provision quoted ras repealed by § 73 of the Code of Procedure, and chapter 245, iaws of 1880, also provided in terms for a repeal thereof, so that íe only statutory reference to the subject in force is § 381 of the lode of Civil Procedure, which provides a limitation of time for eginning actions on sealed instruments. But the cause of action >r the enforcement of the collection of the moneys secured by ie mortgage having accrued before the Code, the question of mitation is governed by the Revised Statutes. Code of Procedre, § 73; Code of Civil Procedure, § 414; Appleby v. Brown, 1 N. Y., 143.

The mortgage has been omitted from the record before us and i the time when payment was to be made does not appear it will s presumed that it was made payable on demand. Ana the thing ■omised being the payment of money, the statute of limitations gan to run from the date of the instrument, at which time the imand could have been made. Howland v. Edmonds, 24 N. , 307; Wheeler v. Warner, 47 id., 519.

This rule of the common law has more recently been declared statute. Code of Civil Procedure, § 410. The presumption en arises from the facts appearing in the record that nearly enty-eight years before the sale of the lands in question for the n-payment of taxes the mortgagee’s right of action was extinisned by payment. Belmont v. O'Brien, 12 N. Y., 394; Morey Farmers' Loan & Trust Co., 14 id., 302; Fisher v. Mayor, 67 , 73-80.

This presumption might have been repelled by proof, (1), of ¡nnent of some part; or,

2) by written acknowledgment of such right of action within t period.

But no attempt in that direction was made. When payment is ma facie presumed from lapse of time, the presumption thus ied has the same force and legal effect as evidence, as though fact were proved in any other manner. Morey v. Farmers’ in & Trust Co, supra.

The jury were, therefore, permitted to find payment of the mortgage long prior to the date of the tax sale, and consequently that there was no mortgagee entitled to the notice provided by statute. And in the disposition of this appeal it must be assumed that such fact was found.

The judgment should be affirmed.

All concur, except Brown, J., absent.


author: Vann, J.

text:
    George Bork, App’lt, v. The City of Buffalo et al., Resp’ts.

      (Court of Appeals, Second Division,

      Filed April 28, 1891.)

    Municipal corporations—Assessments—Buffalo—Contract for wore BY PARK COMMISSIONERS—PREVIOUS CONFIRMATION BY COMMON COUNCII NOT NECESSARY.
    The section of the Buffalo charter which prohibits the city from entering into a contract for any work or improvement at a price exceeding $50( “ until the assessment therefor has been confirmed,” does not apply to tin board of park commissioners, so as to prevent them from contracting fo the paving of an approach within the park system without a previous con firmation of the assessment. This section applies exclusively to the regu lar municipal government, and to the contracts made by it through it common council.
    Appeal from a judgment of the general term of the supreme court in the fifth judicial department, affirming a judgment en tered upon the decision of the court at special term.
    Action to restrain the defendant, the city of Buffalo, from con firming, collecting or enforcing a local assessment for paving Fil more avenue, in said city, and to restrain all of the defendant from entering or continuing upon said avenue for the purpose c paving the same. .The parties stipulated, and the trial com found as facts that, during the year 1886 the plaintiff owned var ious parcels of land adjoining said avenue, which belongs to th park system of said city, and is under the sole jurisdiction an supervision of the board of park commissioners. On the 4th ( May, 1886, said commissioners by resolution declared their intei tion to order that said avenue be paved with asphalt pavement, i accordance with the plans and specifications on file in their offic and directed the proper officer to advertise for proposals to do tl work, and to cause notice of such intention to be duly publishet They also designated May 25th as the time for hearing all persoi interested in the work. Said notice was duly published, as r quired by law, but no person appeared at the time appointed : opposition to the proposed improvement. A proposition from tl defendant Barber to do the work for $173,355.94 was receive accepted and the contract awarded accordingly, and the preside: and secretary were authorized to enter into contract with him complete the pavement for that sum. May 29 a contract was e: ecu ted by the president only, in behalf of the park commissionei who on the same day notified the common council of the fact, ai that there was then in the general fund $86,667.97 to be applh in payment for said work, and that it would be necessary for th body to raise by local tax as much more, “ to be assessed, levi and collected upon the property adjacent to Fillmore avenue and benefited thereby, in accordance with ”■ the statute in such case made and provided. Thereupon, the common council determined by resolution, approved by the mayor, that the amount to be assessed for said improvement was the sum of $86,667.97, and directed the assessors to assess the same upon the adjacent property benefited. In the meantime the contractor had entered upon the aerformance of the contract. ■
    The assessors made the assessment and assessed the sum of 130.89 upon the lands of the plaintiff, but the assessment roll not been “ confirmed ” at the time when said contract was rded and signed. The court further found that “ all the pro-lings required by law to be had and taken in respect to said ssment were duly had and taken,” and dismissed the comnt upon the ground that said assessment roll did not require irmation by the common council before a contract for the k could be legally entered into, and that the assessment upon ntiff’s lands was in all respects regular and valid.

      Moses Shire, for app’lt; Frank C. Laughlin, for resp’ts.

       Affirming 18 N. Y. State Rep., 458

   Vann, J.

The plaintiff claims that the contract entered into ;he park commisioners for the paving of Fillmore avenue is ind, because the assessment therefor had not been previously irmed by the common council. This claim is based upon a ion of the charter of the city of Buffalo which prohibits that from entering into a contract for any work "or improvement, i certain immaterial exceptions, at a price exceeding $500, itil the assessment therefor has been confirmed.” Laws 1870, 3. 519, p. 1205, § 19, as amended by Laws 1885, chap. 181, p. § 20. The main question arising upon this appeal is whether section applies to the board of park commissioners and prefcs them from contracting without a previous confirmation of assessment.

he park commission was organized by chap. 165 of the Laws 869, entitled “ An act to authorize the selection and location ertain grounds for public parks in the city of Buffalo, and to ride for the maintenance and embellishment thereof.” This formed no part of the city charter and was in no way depend-thereupon. It created an independent department of the city srnment and clothed it with powqr to locate parks, to lay out roaches thereto, to appropriate and condemn. lands for these Doses, to make rules for the regulation, government and proron of the parks, and provided an elaborate system of procedto enable the commission to create, embellish and maintain :s with appropriate approaches for the benefit of the city,

he powers thus confided to the commission were to be exer1 independently, without the consent or approval of any other Y or officer. The year after the passage of this statute the charter was completely revised, but no part of the act of 1869 incorporated therein and the park commissioners were not in-ed among the officers of the city. Laws 1870, chap, 519. charter and the park commission act continued to be separate, although one or the other was amended almost every year,, until 1885, when the provisions of the latter were, in substance, added to one of the titles of the former. Laws 1885, chap. 181,¡ pp. 326, 330. The provisions added, however, were no more interdependent with the remaining provisions of the charter, than] the separate acts had been prior to the consolidation. The apparent object of such addition was to have all laws relating to the city government in its various departments embraced in a single statute for the sake of convenience. The park commissioners were not made city officers, but were still given “sole and exclusive power by contract or otherwise, to open, grade, construct, repair and maintain the roadways" and approaches tc the different parks, without leave or license from common counci or other agency of the city and even without the assent of the adjacent owners. They were required whenever any part of the work was assessable locally, to publish in the official paper notice of their intention to make the proposed improvement, for a spcci tied time, and after that to hear all interested persons upon the question of whether the work should be done or not. It is no probable that the legislature intended to provide for two hear ings upon the same question, one before the park commissioner and the other before the common council, or, by implication only to confer upon the latter body the power to determine that an in: provement ordered by the former should not be made. Thi would be inconsistent with “the sole and exclusive power” cor ferred upon the park commissioners with reference to the subjec of parks and their approaches. The object of § 19 title 9 of th charter was to provide for a hearing after confirmation of a assessment, so that the common council could then determim when all persons interested had been heard, whether to go on wit the work, or abandon the enterprise.

That section, as we think, applies exclusively' to the reguh municipal government and to the contracts made by it, throug its common council, because it would enable that body to decic intelligently, and before it was too late to recede, the question su' mitted to its exclusive jurisdiction whether a public improverner devised by it and for which it only was responsible, should 1 contracted for or not. We do not think that it applies to tl park commissioners or to the contracts made by them, becau the common council has no power to decide whether such co tracts are to be made or not, as the entire subject is express committed to an independent department of the city governmei The only duty of the common council in the matter is to raise 1 local assessment one-half the cost of such improvement as t park commissioners may determine upon, not exceeding, ho ever, the limitation of the statute as to amount. While § 19 sa that “ the city shall not enter into a contract" until the asse ment has been confirmed, the history and nature of the two a referred to show that the reference is to the city as governed the mayor and common council, and not to the park depa ment

The interpretation of a statute should accord with its meanii and a liberal rather than a literal construction should prevail when it leads to a discovery of the real intention of the legislature. Dwar. on Stat., 690; Plowd., 205.

The contract, as embraced in the written proposal and the resolution of acceptance, was between the defendant Barber and the park commissioners, not between the city and Barber. While the written agreement was in form between “ the city of Buffalo by the park commissioners,” it was notwithstanding the contract of the commissioners, as an independent department of the city, as appears from the reference therein to the proceedings of the board upon which it depended for validity. As the city was to pay for the work, and to have the sole benefit thereof, the contract was its contract in that sense, but not within the meaning of said § 19, which refers to contracts made by the regular officers of the municipal government, and not to those made by a separate department possessing independent corporate powers. The subject has been so fully considered by the learned general term as to require no further discussion on our part.

The judgment should be affirmed, with costs.

All concur, except Bradley and Haight, JJ., not sitting.


text:
    George W. Ostrander et al., App’lts, v. Erastus Darling, Resp’t.1

      (Court of Appeals, Second Division,

      Filed May 1, 1891.)

    1. Title — Tax sale — Cancellation oe, by comptbolleb, without notice.
    This action was brought to recover for timber and bark cut on a certain lot to which both parties claimed title by patent from the state, In 1842 M. took a contract of sale from the land commissioners, paying oné-quarter of the purchase money and giving his bond for the balance in six annual installments, and receiving a certificate from the surveyor general, but made default, and the state resold the lot in 1847. M. redeemed in the same year but died in 1882 without obtaining a patent, which was taken out by his daughter J. in 1884, to whose rights the plaintiff succeeded. Defendant’s title rested upon a tax deed given in 1862, by the comptroller, as purchaser at the tax sale of 1859, to the People, recorded in the former’s office and the clerk’s office in 1877, and upon a patent issued to one C., defendant’s grantor, in 1870. In 1884 plaintiff procured from the comptroller the cancellation of the tax sale of 1859, as not having be n properly advertised for redemption, which was done without disclosure to the comptroller oE the rights of C. and without proper notice to the latter. Held, that G. was a necessary party in the proceeding to cancel the sale and the attempted cancellation was ineffectual to divest defendant of his title.
    2. Same—Notice to bedeem—Evidence.
    A witness, S., a clerk in the comptroller’s office, produced in court a book of newspaper clippings of notices to redeem from tax sales by a certain date, with no affidavit as to length of publication or certificate that they were the notices published. The witness had no personal knowledge of the matter and was not a clerk at the time of the sale. Held, that the evidence was not sufficient to overcome the presumption, created by statute, that the deed of the comptroller to the People of the state, and the subsequent patent to 0., having been recorded for two years, etc., the notice to redeem was regular and published according to law.

      Appeal from a judgment of the general term, third department, affirming a judgment entered upon the decision of the court upon trial at circuit without a jury.

      Arthur L. Andrews, for app’lts; John M. Carroll, for resp’t.
   Haight, J.

This action was brought to. recover for timber and baric cut and carried away from lot number 20, Ox Bow tract, Hamilton county. Both parties claimed title to the land by patent from the state of Hew York.

It appears that in the year 1842 the land commissioners of the state made a contract of sale to one Andrew K. Morehouse of the land in question; that Morehouse at the time paid thereon one-quarter of the purchase money and gave his bond for the payment of the balance in six equal annual instalments thereafter and received a certificate from the surveyor general of the state. On the 22d of January, 1884, Morehouse died, having never made a claim or demand for the patent of the lot or taken any steps to procure the same. On the 7th of July, 1884, the plaintiff George W. Ostrander and Josephine B. Winchell, who was one of the heirs at law of Morehouse, made an application for a patent under and by virtue of the contract of sale with Morehouse, and in pursuance of such application the People of the state issued to Josephine B. Winchell their patent executed by the governor on the 5th day of August, 1884, in which they granted and quit-claimed to her all the right, title and interest which the People then had to the lot in question, excepting and reserving all gold and silver mines. Such patent was issued pursuant to a resolution of the commissioners of the land office passed August 5, 1884. The plaintiffs, as grantees of Josephine B. Winchell, now have whatever title she obtained by virtue of such patent.

In the month of Hovember, 1859, the land in question was sold by the comptroller of the state on account of unpaid taxes which had accrued against the land prior to that year, and at such sale the lot in question was bid in and purchased by the comptroller for the People of the state and by him conveyed to the People by deed bearing date the 11th day of March, 1862, which deed was recorded in the office of the comptroller in Book 5 on page 147, on March 11, 1862, and in 'the office of the clerk of Hamilton county in Book 12, page 400. May 30, 1877.

On the 4th day of August, 1870, and whilst such deed was in force and valid, the People of the state issued to Patrick H. Crowe their patent executed by the governor under his hand and the seal of the state, in which they duly granted and quit-claimed to him the lot in question together with all the rights, hereditaments and appurtenances to the same belonging or appertaining, excepting and reserving only all gold and silver mines, which patent was countersigned by the secretary of state and recorded in his office in Liber 40 of Patents at page 182, and on the 30th day of August, 1883, was recorded in the clerk’s office of Hamilton county in Book of Deeds, Ho. 17 at page 481. The defendant as the grantee of Crowe is the owner of all the right, title and interest acquired by him under such patent.

Morehouse under his contract of purchase had the right of possession, and under the statutes of the state the land so purchased by him became subject to taxation and to a re-sale in case of default in payment of the taxes assessed thereon. As we have seen, such a sale took place in 1859 resulting in a deed to the state in 1862, thus re-investing the state with the title to the land, and thereafter and in the year 1870 the state reconveys to Crowe. The patent issued to Crowe ante-dates that issued to Winchell by fourteen years, and consequently furnishes a superior title unless it is void for the reason that the notice of redemption did not conform to the statute in stating that unless such lands are redeemed by the day named they will be conveyed to the purchaser.

It appears that m August, 1884, Ostrander applied to the comptroller to have the sale 'of 1859 cancelled for the reason of this ■defect in the notice of redemption, and thereupon a clerk on direction of the comptroller entered upon the book of tax sales of the lands of non-residents in the column under the heading of names of persons redeeming, the words “Cancelled, not properly advertised for redemption.”

If this action on the part of the comptroller effects the cancellation of the sale it operates to divest the defendant of title to the premises in question. We shall, therefore, first consider this question.

It appears that neither Crowe or the defendant had any knowledge of the application of Ostrander to the comptroller for a cancellation of the sale or of the application for the patent that was issued to Winchell. It is not pretended that any notice was in any manner given of such applications. The statute provides that “ Whenever the comptroller shall discover, prior to the conveyance of any lands sold for taxes, that the sale was for any cause whatever invalid or ineffectual to give title to the lands sold, the lands so improperly sold shall not be conveyed, but the comptroller shall cancel the sale and forthwith cause the purchase-money and interest thereon to be refunded out of the state treasury to the puchaser, his representatives or assigns.”

And again, “ If the discovery that the sale was invalid shall not be made until after the conveyance shall have been executed for the land sold, it shall be the duty of the comptroller, on receiving evidence thereof, to cancel the sale, to refund out of the state treasury to the purchaser, his representatives or assigns, the purchase-money and interest thereon,” etc. Laws of 1855, chap. 427, §§ 88, 85.

It is now contended that under these provisions of the statute the comptroller may, at the instance of any person, cancel the sale without notice to the purchaser and thus cut off any vested interest that he may have acquired. This proposition is somewhat extraordinary, for it permits the comptroller at any time, even many years after the sale and after the land has been made valuable by improvements, to absolutely cut off and deprive parties of the title acquired by them without an opportunity to be heard.

We do not understand this to be the of these provisions. They have already received judicial construction in the cases of Wright v. Chapin, 104 N. Y., 369; 6 N. Y. State Rep., 837, and Ostrander v. Chapin, 105 N. Y., 309; 7 N. Y. State Rep., 209, in which it was held that the provisions were enacted for the benefit of the purchaser and to relieve him from the consequences of a defective tax title; that the owner of the land was not properly a party to the proceeding nor could he be permitted in any way to test the validity of the sale in such proceedings.

Danforth, J., in delivering the opinion of the court in the former case, says: “ The evident object of these provisions was to enable the state to relieve the purchaser from the consequences of a defective tax title, and at the same time replenish its treasury by a speedy collection of the tax withheld from it. The owner of the land is not a party to the proceeding, nor is he permitted in this way to test the validity of the sale or tax. In such a controversy the purchaser would have an interest and a right to its protection in the courts by the.usual course of legal proceedings. The statute contains no intimation of a legislative purpose to deprive him of that right. It gives no process to bring him in; confers no power to compel witnesses. In short, it creates no court; provides for a single transaction to which the comptroller and the purchaser are the only parties."

It is hardly necessary to consider the question further, for it at once becomes apparent that the purchaser is a necessary party in the proceeding to cancel the sale, as he is the one chiefly interested.

We are therefore inclined to the opinion that the attempted cancellation was ineffectual.

It remains to be determined whether the sale was invalid by reason of a defective notice to redeem.

Section 65 of the aforesaid act provides that “ The comptroller’s deed shall be presumptive evidence that the sale and all proceedings prior thereto, from and including the assessment of the land, and all notices required bylaw to be given previous to the expiration of the two years allowed to redeem were regular, according to the provisions of this act, and all laws directing or requiring the same, or in any manner relating thereto."

The only evidence appearing in the appeal book bearing upon the question of a defective notice to redeem was given by the witness Sanger, a clerk in the comptroller’s office, who produced in court a book which contained printed notices clipped from newspapers pasted therein, among which appeared the following: “The Sentinel, Sageville, Hamilton county, July 11, 1861. List of land sold for' arrears of tax of 1859. Comptroller’s, office, Albany, March 20, 1861: Notice is hereby given pursuant to title 2, chapter 427, of the Laws of 1855, that at the sale above mentioned, which closed on the 28th of November, 1859, the following described pieces or parcels of land, situate in the county of Hamilton, were sold for arrears of taxes due thereon, and which remained unredeemed, and that the payment into the treasury of this state of the sum set opposite each lot, piece or parcel of land, will be required to redeem the same respectively at the time for the redemption thereof, which will be on the 28th of November, 1861. Robert Dennison, Comptroller.” “Hamilton county. Description of land remaining unredeemed at comptroller’s tax sale of 1859, Ox Bow tract, lot 20; 250 acres; $8.16.”

There was also a similar notice pasted in the book as having been clipped from the “Democrat,” Johnstown, N. Y., June 4, 1861. There was no affidavit on the part of the publishers of-these newspapers in reference to the length of time that these notices were published in their respective papers. There is no certificate attached to it or proof that they were the notices published.

Sanger, upon cross-examination, testified that he was not in the comptroller’s office in 1859 or in 1861; that he had no personal knowledge that these notices were published anywhere; that what he had stated about their being taken from the paper and pasted in the book was what he had been told; that he had no personal knowledge of the contents of the papers, and that correct notices might have been published for all that he knew. We are inclined to the opinion that this evidence is not sufficient to overcome the presumption created by statute.

The land in question was a wild and uncultivated tract, and not occupied by the plaintiffs or any one in their behalf.

The law of 1855, chap. 427, § 65, was amended in 1885, chap. 448, so as to provide as follows: “ Such conveyances shall be exe>. cuted by the comptroller, under his hand and seal, and the execution thereof shall be witnessed by the treasurer or deputy comptroller, and all such conveyances that have been heretofore executed by the comptroller, and all conveyances of the same lands by his grantee or grantees therein named, after having been recorded for two years in the office of the clerk of the county in which the lands conveyed thereby are located, and all outstanding certificates of a tax sale heretofore held by the comptroller that shall have remained in force for two years after the last day allowed by law to redeem from such sale shall, six months after this act takes effect, be conclusive evidence that the sale and all proceedings prior thereto, from and including the assessment of the land, and all notices required by law to be given previous to the expiration of the two years allowed by law to redeem, were regular and were regularly given, published and served according to the provisions of this act,” etc.

As we have seen, the deed by the comptroller to the People of , the state and the patent subsequently issued to Crowe were recorded in the office of the clerk of the county of Hamilton more than two years before the passage of this act, and more than six months have elapsed since the act took effect. They are, therefore, brought within the express provisions of the act which makes them conclusive evidence that the notice to redeem was regular and regularly given and published according to law. This act is not in conflict with any of the provisions of the constitution and must, therefore, be deemed to have finally disposed of this question. The People v. Turner, 117 N. Y., 227; 27 N. Y. State Rep., 158 ; Ensign v. Barse, 107 N. Y., 329; 12 N. Y. State Rep., 39; Chamberlain v. Taylor, 36 Hun, 24-38.

The judgment should be affirmed with costs.

All concur, except Parker, J., not voting, and Brown, J.r absent.

       Affirming 25 N. Y. State Rep., 72.


author: Parker, J. Vann, J. (dissenting).

text:
    Anastasia Brady, Resp’t, v. The Manhattan Railway Company, App’lt.

      (Court of Appeals, Second Division,

      Filed April 28, 1891.)

    Negligence—Elevated railroad — Evidence oe accidents at other stations.
    While it is proper for a plaintiff claiming to have been injured while stepping from an elevated train to the station platform to show the occurrence of other accidents at the station where the accident happened, for the purpose of making it appear that the defendant had been warned of the dangerous character of the facilities provided by it for the exit of passengers, if dangerous they were, it is not proper to prove the happening-of accidents at other stations in the absence of evidence tending to show that the conditions were similar.
    (Vann, J., dissents.)
    Appeal from a judgment of the general term of the court of common pleas for the city and county of New York, affirming a judgment of the trial term of that court, entered upon a verdict after trial of issues of fact before a jury.

      Samuel Blythe Rogers, for app’lt; Peter A. Hendrick, for resp’t.

       Reversing 35 N. Y. State Rep., 585.

   Parker, J.

The recovery had was for injuries sustained by the plaintiff while stepping off defendant’s cars to the platform at the' station situated at the intersection of Third avenue and Forty-second street.

The plaintiff testified that after the train had stopped in front of the platform of the station for the exit of passengers, the doors and gates of the car in which she had been riding were opened and the passengers notified to leave the car; that thereupon, preceded by one of her companions, she attempted to pass from the car to the platform, but in so doing stepped between the platform of the car and the platform of the station and fell with great force, and as a result one leg was broken and other severe injuries sustained.

The plaintiff’s contention on the trial was that this accident was wholly due to the negligence of the defendant, in that it so constructed the platform as to cause a space of greater width between the car and the station platform than was necessary for the operation of its trains, and that by reason thereof it was unsafe and dangerous to passengers passing to and from the station platform and the cars.

With the avowed object of showing that such space was unsafe and dangerous to passengers, and also for the purpose of charging the defendant with notice of the dangerous character of the facilities provided for the entrance and exit of passengers, the plaintiff gave evidence tending to show the happening of accidents at other stations on the elevated roads.

Whether some of the evidence thus adduced was improperly received we shall now consider.

Against the defendant’s objection and exception, the witness Higgins was permitted to testify:

“ Q. Prior to March 16, 1887, had you ever in passing from'the elevated cars to an elevated station platform yourself stepped between the platform ? A. Yes, sir.
“ Q.. At what station was it? A. Fifty-third street and Eighth avenue. * * * At Fifty-third street and Eighth avenue the station platform is practically a straight line. I observed the distance that existed between the car platform and the station platform on the occasion when I passed through.
“ Q. From your recollection and observation at the time, w.hat was the distance ? (Beferring to width of space between car .and platform.) A. Between eight and nine inches.”

The witness Spatz also testified:

“ Q. State whether or not prior to March 16, 1887, you knew of any person in passing from the cars to the station platform, or from the station platform to the cars, to step into the space between the station platform and the platform of the car ? A. Yes, sir.
“Q- Where and when? A Seventy-sixth street and Third avenue.
“Q. Whereabouts and how often? A. In different stations; in different times in different months.
“ Q- If you can remember any one station or any one time, give us that time and place ? A. Franklin Square. The platform there which adjoins the car platform is not a straight line.
“ Q. How wide was the distance between the station platform and the car platform where that occurred ? A. I should say from six to eight inches.
“ Q. Before March 16, 1887, state some one case when a person stepped between the car platform and the station platform ? A. At Chatham Square. As far as I can recollect that was about March, 1887. I cannot remember now whether it was before the 16th of March. It was in March or in that direction. I think it was in the early part of the month. That is the best of my remembrance. Yes, sir.
“ Q. And is the platform of that Chatham Square station a straight line ? A. Ho, sir.”

The witness further testified that he was unable to remember any other case occurring before that time.

It was proper for the plaintiff to show the occurrence of other accidents at the station where the accident happened for the purpose of making it appear that the defendant had been warned of the dangerous character of the facilities provided by it for the exit of passengers, if dangerous they were. But it was not proper to prove the happening of accidents at other stations, in the absence of evidence tending to show that the conditions were similar. The details of the accidents testified to, with the exception of the individual case of the witness Higgins, were not given ; whether they occurred in the day time or during the night, whether the stations were light or dark,_and the platform of the car slippery or not, does not appear. It does not even appear that the distance between the platform of the car and the platform of the station was the same at the other stations where accidents are alleged to have occurred as at the station in question. Indeed, it affirmatively appears that the space was of greater width at two of the stations than at the station in question, where it did not exceed five inches. One of the plaintiff’s witnesses testifying with reference to the distance between the platforms of the cars and the station platforms, said that “ none came up very close. The nearest, as near as I could judge, from three to four inches. Some stations came nearer and some farther. On the different construction of cars used by them at that time the space allowed between the station platform and the car platform differed. Some were wider than others.’1 Again, when stations are built on a curve, each car as it stops touches the curve at a tangent, so that while the middle part of a car may be within one or two inches of the platform, the ends will be several inches therefrom, and in such cases the width of the space between the car platform and the station platform is greater than wdien the station is on a straight line, and two of the accidents testified to occurred at stations thus situated.

In Boyce v. Manhattan Railway Company, 118 N. Y., 314 ; 28 N. Y. State Rep., 692, the plaintiff stepped into an open space between the platform of a car and the station platform which was built on a curve. It appeared that the width of such space was about fourteen inches, and this court affirmed the judgment recovered, not on the ground that the space was greater than necessary, owing to the peculiarities of the station, but because the jury were authorized to find that precautions' adapted to the situation had not been taken by the defendant, it appearing among other things that the jury were authorized to find that the unguarded space had not been suitably lighted so as to enable the passenger to see it and thus avoid the danger. It would not be contended for a moment that such an accident as is described in the Boyce case would be admissible in a case like the one before us for any purpose. But the stations at Franklin Square -and at Chatham Square, two of the stations designated by the witness Spatz as places where accidents had happened, were, as testified to by him, stations where the car platform is not on a straight line, and for aught that appears the evidence as to such accidents is as objectionable as would have been proof of the Boyce injury if offered for the same purpose.

Proof of the happening of a prior accident in the same place has frequently been held to be competent upon the ground that it tends to show that tested by actual use the place of the accident has been demonstrated to be unsafe and dangerous, but our attention has not been called to a case where proof of the occurrence of an accident in some other place has been held to be proper for that purpose. We think, howmver, that in a case like that before us the evidence may become proper where evidence is first adduced tending to show that the conditions are similar. If for inst-m'--'. the platform of the station at Franklin Square had been on a straight line, as in this case, and the distance from the station platform to the car the same as here, we see no reason why evidence of accidents occurring there should not be received if of such a character as would render evidence thereof competent had they occurred at the station in question.

As the views expressed call for a reversal of the judgment, we need not consider the other questions presented by the appellant.

The judgment should be reversed.

Vann, J. (dissenting).

I dissent upon the ground that it was the duty of the defendant to use due care to protect its passengers not only from dangers that were known, but also from such as could reasonably be apprehended. I think that the evidence in question was competent to prove notice to the defendant of the general nature of the danger to be guarded against at all of its stations and to prevent it from taking the position that no such accident had ever happened before although many persons had daily used the means provided for entrance and exit. Dougan v. Champlain Transportation Co., 56 N. Y., 1, 7; Cleveland v. New Jersey Steamboat Co., 68 id., 306, 313; Loftus v. Union Ferry Co., 84 id., 455, 459, 460 ; Hubbell v. City of Yonkers, 104 id., 434, 439 ; 5 N. Y. State Rep., 730 ; Lafflin v. Buffalo & Southwestern R. R. Co., 106 N. Y., 136, 139 ; 8 N. Y. State Rep., 596 : McGovern v. Central Vermont R. R. Co., 123 N. Y., 280, 287; 33 N. Y. State Rep., 416; Quinlan v. City of Utica, 11 Hun, 219: S. C., 74 N.Y, 603. For that purpose evidence that the conditions were substantially identical should not be required, but proof of general similarity should be deemed sufficient.

Judgment reversed and new trial granted, with costs to abide event.

All concur, except Vann, J., dissenting, and Brown, J., absent.


author: Macomber, J.

text:
    In the Matter of the Petition of The Buffalo & Geneva R. Co., App’lt, for Appointment of Commissioners to Appraise Certain Lands of Warren W. Britt et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Eminent domain—Award.
    Where no erroneous methods of procedure are disclosed by the record and no erroneous principle shown to have been adopted by the commissioners in making their award, the appraisal will be affirmed.
    Appeal from an order of the Brie special term, dated May 15, 1890, confirming the report of commissioners appointed to appraise the damages sustained by the respondents by laying out of the petitioner’s railway through their lands.

      Arthur E. Clarke, for app’lt; Myron H. Peck, Jr., for resp’ts.
   Macomber, J.

The appeal is both from the appraisal of the commissioners and from the order of the special term confirming the same, by which an award of $4,000 was made to the land owners for their damages sustained by reason of the laying out of the petitioner’s railway through the lands of the former.

The respondents’ land consists of a farm of 106 acres in the town of LeRoy, Genesee county, a greater portion of which lies on the north side of the highway which runs ea'st and west through the farm. The farm contained two dwelling houses and two barns, and other suitable buildings adapted for extensive stock raising and general farm purposes. The piece of land consisting of about twenty-six acres lying on the south side of the road was purchased by the respondents in the year 1880, and one of the principal objects of such purchase was to acquire the privileges of a living spring of water thereon, from which water was carried in pipes to the barns and other portions of the respondents’ property. The railroad, passing through these twenty-six acres, cut off this water pipe 120 feet from the east line of the farm. There was a cut in this portion of the petitioner’s railroad bed of about five and one-half feet deep through this part of the lands, so that the water pipe, in order to be continued available to the owners of the land, would be required to be depressed considerably below this cut. Evidence was adduced to show that by reason of this deflection of the pipe rust and sediment would accumulate therein, so that it became necessary from time to time to flush the pipe in order to get any adequate supply of water through it.

Much evidence was taken upon the subject of the amount of damages which the owners of the land sustained by reason of the construction of the railroad and the consequences. thereof to the spring, not all of which, however, has been returned to us upon this appeal, as appears by the certificate of the chairman of the commissioners making the award.

The main subject of contention by the learned counsel for the appellant is, nevertheless, that the award of $4,000 is excessive under the evidence. Under the circumstances, although we have looked into the evidence to discover, if possible, any erroneous rule or principle adopted by the commissioners for estimating such damages, we find nothing which would lead us to question in the least the fairness and justness of the. estimate made by the commissioners. The statute requires the commissioners 'themselves to examine personally the property proposed to be taken. 2 R. S., 7th ed., 1551, § 16.

The adjudication made by the commissioners does not rest alone upon the testimony returned to us, but upon other evidence not returned, as well as upon information gathered from a duty imposed upon them by statute, to make an actual inspection and examination of the premises.

Where, as in this case, no erroneous methods of procedure are disclosed by the record, and no erroneous principle shown to have been adopted by the commissioners in making their award, it is our duty to affirm the appraisal. Re N. Y. El. R. Co., 12 1ST. Y. Supp., 858; 35 K Y. State Rep., 944.

The order appealed from should be affirmed, with costs.

Dwight, Pi J., and Corlett, J., concur.


text:
    Delia Clark, Resp’t, v. Lorentine G. Miller, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Conversion—Supervisors.
    An order was issued by the board of supervisors to pay a claim of plaintiff for injuries to her horse, the name of her husband being erroneously included as a claimant. It was given to defendant as supervisor of such town to deliver to plaintiff. Instead of doing so he turned it over to a constable, who held an execution in his favor against plaintiff’s husband, with directions to levy thereunder on half of the order. Held, that as officer of the town defendant was charged with the performance of the duty of delivering the order to the claimants within a reasonable time, and that when he turned it over to the constable he was guilty of a conversion, irrespective of any previous demand.
    Appeal from a judgment of the county court of Cattaraugus county, entered August 26, 1890, affirming a judgment of a justice of the peace.

      J. R. & M. B. Jewell, for app’lt; Frank Rumsey, for resp’t.
   Macomber, J.

This action was brought to recover damages for the conversion of an order issued by the board of supervisors of Cattaraugus county, directing the defendant, who was a member of such board from the town of Hinsdale, to pay to the order of Cyrus N. Clark and the plaintiff, Delia E. Clark, the sum of twenty-five dollars, being the amount agreed upon for injuries to a horse, received on the 1st day of November, 1888, through defects in a bridge in the town of Hinsdale. The • claim for such injuries had been audited by the town board of the town of Hinsdale before the order was allowed and issued by the board of supervisors.

The horse, which was so injured, belonged wholly to the plaintiff. After the-presentation orally of the claim, the same was reduced to writing by one Henry Norton, who inserted the name of Cyrus N. Clark as the claimant. The scrivener was then told by Mr. Clark, in the presence of the defendant, that he had no interest in the claim, but that it was his wife’s, as the horse belonged to her. Thereupon, without taking out the name of Cyrus N. Clark, the name of the plaintiff was added to his, so that the claim stood, before both the town board and the board of supervisors, in the names of both husband and wife.

The order of the supervisors was in due course of business entrusted to the defendant as such supervisor of the town of Hinsdale for delivery or payment to the claimants. The defendant, however, being a creditor of the husband, against whom he had a judgment of about $35.00, recovered in a justice’s court, instead of delivering the paper to the claimants, placed it in the hands of a constable, who held an execution issued on such judgment, with directions to levy thereunder upon one-half of the order. It was shown that the value of the order so converted by the defendant was the sum of $25.00, for which judgment was given, besides costs, which was affirmed by the county court, from which judgment this appeal was taken. The date of the order was Novembev 30, 1889. A written demand was made upon the defendant for its delivery February 14, 1890. This action was begun April 18, 1890. The instructions by the defendant to the constable to levy upon the order made in connection with the delivery thereof to the constable for that purpose was six weeks before the trial, which was had May 3, 1890.

It is argued by counsel for the appellant that inasmuch as the order came lawfully into the hands of the defendant a demand of its delivery and a refusal of such demand must be shown in order to entitle the plaintiff to recover. The only evidence of a demand consisted of the delivery by a constable of a written demand purporting to have been signed by the plaintiff by her husband as her agent, requiring the delivery of the paper to the constable. It is true that there is no direct evidence of an authorization by the wife to her husband to make the demand, and, under the circumstances disclosed, none was required to be given.

Cyrus N. Clark had acted throughout the transactions as the agent of the wife, had verified the claim and had been recognized by the defendant while a member of both boards as such agent. The defendant refused to deliver the order to the constable, but he did not place his refusal upon the ground that the person signing the demand as agent of the plaintiff was not such agent, or that he desired any evidence thereof.

But no formal demand upon the defendant was required. As the officer of the town, he was charged with the performance of the duty of delivering the order to the claimants within a reasonable time after the receipt by him. No demand was required to be made upon him because he had no discretion in the premises. He could make no legal disposition thereof except the one required by law without the consent of the owners thereof. When, therefore, he diverted the order from the legal purpose of handing it to the constable, with instruction to levy thereon to the extent of one-half its value, which was done before this action was brought, he was guilty of an actual conversion, irrespective by any previous demand to deliver it to the claimants. A public officer cannot make his opportunities thus to subserve his private and selfish ends, as was attempted by the defendant.

The judgment should be affirmed, with costs.

Dwight, P. J., and Corlett, J., concur.


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    Harriet E. Jokes, Pl’ff, v. The Charles H. Sagar Co. et al., Def’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Negligence—When a question eoe jury.
    The floor of defendant’s store was undergoing repairs, the business continuing during the time of such work. A piece of the flooring about four feet from the door was taken up, and a carpenter stationed there was instructed to warn persons who entered. Plaintiff entered the store, and said she was snow blind. The carpenter told her in an ordinary tone of voice to be careful, as they were laying a floor. She then went on, and stepped into the hole, and was injured. In an action for damages she testified that she did not hear the warning, as she had a veil over her head and ears. Held, that the questions of negligence were ones for the jury, and that a dismissal of the complaint was error.

      Action by the plaintiff for a new trial upon exceptions taken upon a nonsuit at the Cayuga circuit, October, 1890, and ordered to be heard at the general term in the first instance.

      John D. Teller, for pl’ff and motion; George Underwood, for def’ts, opposed.
   Macomber, J.

This action was brought to recover damages for personal injuries received by the plaintiff.

On the 11th day of March, 1889, the plaintiff entered a store building at 109 Genesee street, in the city of Auburn, occupied as lessee by the defendant, The Charles H. Sagar Company, as a retail drug store, the title of the property being in the other defendants. At the time stated the carpenters were at work inside of the store repairing the floor, under the employment of the owners of the real estate. While such repairs were in progress, the defendant, The Charles H. Sagar Company, continued its business as usual, no warning to customers being posted at the door or elsewhere. The business proceeding as usual on the day in question. The store was about twenty-five feet wide and between fifty and seventy feet in length. It had a plate glass front, set with large single lights on the line of the street on each side of the entrance.

There were double doors set back a space from the line of the street and windows of single plate glass from the door posts on either side to meet the large windows in front, thus making substantially an entire glass front to the whole store. At the time the plaintiff received her injuries there were no counters or furniture in the front part of the store near the door, the same having been moved back to enable the carpenters to prosecute their work. On the west side of the store there was no counter at the front end of the store. About fifteen feet back, however, there was a small desk, and extending back into the store from that there was a counter. A portion of the old floor had been taken up by the workmen. Immediately in front of the door through which the plaintiff passed into the store was a piece of flooring which formed a sort of platform extending from the door back three or four feet into the store. There was an opening in the floor extending from the northeast corner of this platform down towards the rear of the store, three or four feet distant from and east of the center of the door through which the plaintiff passed. The president of the company had instructed the workmen to be careful and to warn customers of the existence of the hole in the floor. One of the carpenters, Gould, was working near the door, especially charged with the duty of forewarning customers of the dangerous condition of the floor. As the plaintiff passed into the store, which was at ten o’clock in the forenoon, she encountered a young man who was passing out who crowded her somewhat. As she came inside the store and onto the platform, she paused and exclaimed that she was snow-blinded and could not see. In this she was corroborated by Gould, who testified that she said she was somewhat snow-blinded and could not see very well. During this time Gould was kneeling on the floor nailing a board within two or three feet of the east door post, and, as he testified, while standing within three feet of her, said in his natural tone of voice: “Be careful, we are laying anew floor here, and it is up in front of you.” He said that she seemed to hear him and apparently looked down towards the floor in front of her, and he supposed, as he testified, that she saw the hole as she made the answer “yes” to the remark which Gould had made to her. As Gould was returning to this work, the plaintiff took a step forward with her left foot, directly into the hole, where her injuries were received.

The plaintiff testified that she did not know that there was any opening in the floor, and that as she had a veil over her head and ears she did not hear any one speak to her and said nothing to any person on entering the store, except to say that she was snow-blinded.

The learned justice at the trial directed a dismissal of the complaint solely upon the ground that the workman, Gould, gave a proper warning to the plaintiff, which she was bound to heed, and, not heeding it, she cannot recover for her injuries there received. It must be borne in mind, however, that though Gould was in that part of the store at work upon the floor, and was charged with the duty to forewarn customers of the dangerous condition of the floor, yet, according to his own testimony, the warning was given in an ordinary tone of voice, after the plaintiff had made her exclamation that she was blinded by the glare of the sun upon the snow. The plaintiff’s ears were muffled, it is true, so that if she had been in a place where danger was to be anticipated she might be said to have been at fault in not having her hearing at command, so as to heed any warning that might be given; but she was not anticipating danger; she was not in a place where any person would be called upon to take unusual care; she was, by implied invitation, entering a public place. Under these circumstances we think the case was not properly disposed of by the learned justice at the trial, and that it presented a question of fact which should have been sumitted to the jury.

It follows that the motion for a new trial should be granted, with costs to abide the event.

Dwight, P. J., and Corlett, J., concur. •


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    Frederick Van Patten, App’lt, v. Constantine Ulrich, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

      . 1. Bills and notes—Usury. .
    A firm having applied to one S. for a loan, he agreed to procure the money if it would procure the endorsements of this plaintiff and defendant. Defendant endorsed first and plaintiff afterwards, and S. procured the discount of the note by a bank and turned over to the firm the identical bills received from the bank.' The firm then gave its note to S. for twenty-five dollars, as compensation for his services. Held, that the note endorsed by these parties was not tainted with usury.
    2. Same—Contribution between endorsers—Subrogation.
    Said firm had given S. collateral security to indemnify him against liability, and when plaintiff was compelled to pay the note, S. turned over to him such security. Held, that plaintiff was subrogated to the rights of S., and, being sufficiently secured, could not maintain an action for contribution against defendant.
    Appeal from a judgment entered in Cayuga county on the. 1st day of November, 1889, on the report of a referee.

      Rich, & Dutton, for app’lt; F. D. Wright, for resp’t.
   Macomber, J.

— This action is brought by one endorser of a promissory note, against co-endorser, to recover one-half of the amount paid to the holder of the paper after maturity, and after notice of demand and non-payment had been given to both endorsers.

The note was made by the firm of Bohn & Bowen on the '25th of September, 1884, in the sum of $200, payable three months after date, with interest, at the First National Bank of Auburn. Both parties to this suit endorsed the note solely for the accommodation of the makers. Their endorsement was procured at the instance of one Mr. Smith, to whom the makers had applied for a loan, and who had told them, in substance, that he could procure the money for them provided they obtained the endorsement of these persons. The note was accordingly made as suggested by Smith, endorsed by Ulrich first and by Yan Patten afterwards, and taken by the makers to Smith, who in turn endorsed it and presented it at the First National Bank, which discounted it at Smith’s request, and the proceeds, viz., $200, handed to him, the identical money received by Smith from the bank, being turned over by him to Bohn & Bowen. After the maturity of the note an action was brought by the bank against Yan Patten, the plaintiff in this action, who paid the note and costs in full, and he now brings this action against his co-endorser for contribution.

The learned referee has found that the note was executed and delivered in pursuance of a corrupt and usurious agreement, made between Bohn & Bowen on the one side, and Smith on the- other, by which Smith should loan to the makers the sum of 200 at three months on the condition that the makers should pay him ■the sum of twenty-five dollars over and above lawful interest. It further appears in evidence, and the fact is found by the refereé, that Bohn & Bowen gave Smith a note of twenty-five dollars, which was paid three days thereafter, and which the referee has further found was done in pursuance of the usurious agreement.

It is upon this ground, solely, that the decision of the learned referee in favor of the defendant has been given. It seems to us, however, that the fair construction of the testimony of Bowen and Smith, who gave all the evidence relating to this subject, goes rather to show, that the sum of twenty-five dollars was paid to Smith for accommodation to them by way of endorsement and procuring the note as so endorsed by him to be discounted by the "bank, rather than as an usurious transaction. Whatever the preliminary talk may have been between the parties, it is conceded that when they came to act upon the previous negotiations Smith received the note with the endorsements, added his own, and that then the bank discounted it for him and mainly upon his resposibility, paying over to him the full face thereof. He retained no part of the principal sum, but delivered the identical bills to the makers of the note. There was, therefore, no usury in the transaction. The bank was the first and only holder of the note for value. Its inception was when the cashier discounted the note. The paper, therefore, did not have the taint of usury upon it.

But there is a ground, however, upon which the judgment appealed from may be affirmed. Whatever the agreement between the makers and Smith was, there was turned out by the makers to him sufficient personal property as collateral security to indemnify him from all liability upon the note. After the note had been paid hy this plaintiff, and apparently as a part of that transaction, Smith turned over to him the most of this personal property, at least sufficient to indemnify the plaintiff against the claim now made by him against his co-surety. The plaintiff was subrogated to the rights of Smith. e

One who endorses negotiable paper for the accommodation of another party to the instrument, has all the rights of a surety, and is exonerated -in like manner in respect to every one having notice of the facts. Rouse v. Whited, 25 N. Y., 170; Barry v. Ransom, 12 id., 462 ; Griffith v. Reed, 21 Wend., 502; Greenough v. McClelland, 2 El. & El., 424; Pooley v. Harradine, 7 El. & B., 431; Davies v. Stainbank, 6 De G., M. & G., 679.

It is an established principle, elementary in its character, that a surety is entitled to the benefit of every security for the performance of the principal obligation, whether held hy the creditor or by a co-surety, whether the same was given at the time of entering into the contract or was acquired afterwards, and whether the surety was or was not aware at the time this contract was made of the fact that such security had been given. Stirling v. Forrester, 3 Bligh, 575-590; Aldrich v. Cooper, 8 Ves., 382; Ramsey v. Lewis, 30 Barb., 403 ; Pledge v. Buss, H. R. V. Johns., 663 ; Pearl v. Deacon, 24 Beav., 186.

For the reasons here stated, the judgment appealed from should be affirmed.

Dwight, P. J., and Oorlett, J., concur.


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    In the Matter of the Proceeding of The Board of Trustees of the Village of Olean, Resp’t, to Acquire Title to Lands of John J. Steyner et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Municipal corporations—Opening streets—Damages.
    The map of the village showing the street in question was made in 1836. The deeds of the adjoining premises owned hy appellants have since 1862, at least, bounded the premises hy suchstreet. Éeld, thatunder these circumstances the land owners were only entitled to nominal damages on the opening of the street.
    Appeal by the abutting land owners from an order of the county judge of Cattaraugus county, confirming the award of the commissioners giving nominal damages only for the laying out and opening of Fifth street, between Washington and Eeed streets, in the village of Olean, N. Y.

      Frank Rumsey, for app’lts; Fred. L. Eaton, for resp’t.
   Macomber, J.

For title to the lands in question it is not necessary to go back of the ownership possession one Mary G. Sewell, the executor of whose last will did, January 21, 1862, convey the land in dispute to one Simeon Savage, bounding it by this street by name according to a map. On the 13th day of February, 1868, Savage conveyed to the appellant, John J. Steyner, two distinct parcels, one on the east side and the other on the west side of Fifth street.

Steyner went into possession of the lands, tilled and occupied them, and in 1885 conveyed to Martha Black the lot on the west side of Fifth street, in the deed of which the lot was bounded by the westerly line of that street. The title of the appellant Dilks presents a similar state of affairs and • does not differ in its legal aspects from the case of the other appellant, Steyner.

The map of the village of Olean by which this street was laid down, and by which it has been recognized as Fifth street for purposes of describing the boundaries of abutting lots, was made in the year 1836, by one Gfosseline.

It is argued by the learned counsel for the respondents, and we think correctly, that by these several conveyances, under which the land owners now claim, the grantees and their successors are entitled to an uninterrupted right of way along Fifth street; so that if the question related solely to the rights of the land owners in insisting upon the right of way through this street, the free use of the street could hardly be denied to them under the facts disclosed. They would clearly be entitled to an easement .and free access to their property by means of this street.

The principal question, however, relates to the power of the village of Olean to open and work this street without making substantial compensation for damages therefor to the present owners. We think, as the commissioners say in their report to the county judge, that it is an irresistible conclusion that the parties to these deeds, in their emphatic recognition of the Gfosseline map and of Fifth street, intended to show their adhesion to Gfosseline’s system, and their willingness to permit the opening of this street whenever the public authorities should see fit. A private right of way was not thought of by these parties. The term used on the map was street,” and every one understood its significance as contra-distinction from a private road. To give these grantees a right of ingress and egress over Fifth street for all time to come, and still not include the right to have an actual street, if the growth of the village justified it, would do violence to the good sense of the parties to these deeds. Such was not their intention. Bridges v. Wyckoff, 67 N. Y., 130.

The proceedings for the laying out and the opening of the street were regular; and whether the way may be regarded as an actual highway, or simply a private way, as the same existed on the ■Gfosseline map for upwards of fifty years, the damages to the land owners would be in either case but nominal, and not substantial.

The order appealed from should be affirmed, with costs.

Dwight, P. J., and Oorlett, J., concur.


author: Bischoff, J.

text:
    John D. Elwell, Resp’t, v. Cyprien Fabre, App’lt.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)

    1. Contract—Construction of.
    The defendant agreed in writing with the plaintiff to send every steamer of his “line” to plaintiff’s pier. He owned the steamer “Iberia,” and its captain and crew were under his control, although for the voyage in question the steamer was under a contract of affreightment to another person. The name of the line did not appear in the contract, but it was-not shown that defendant had more than one line. Held, that under the contract defendant was bound to send the steamer to plaintiff’s pier, and that for his failure to do so plaintiff could recover.
    3. Evidence — Counterclaim — Mitigation of damages—General denial.

      At a time when defendant sent steamers to the pier repairs were being made upon it which contracted the space, and, as alleged, caused defendant extra expense in piling the freight higher. For this defendant made a counterclaim. In reply to this, plaintiff was allowed to show, in mitigation of damages, that, in this state of affairs, he had offered defendant the use of another pier. Held, that this evidence was proper and might, be shown under a general denial of the counterclaim.
    Appeal from so much of the judgment for plaintiff as awards a recovery on the first cause of action alleged in the complaint, for damages for breach of an express agreement in writing entered into between the parties for the use of plaintiff’s pier by defendant’s steamers.

      Eustace Conway, for resp’t; Robert D. Benedict, for app’lt.
   Bischoff, J.

While it appears from the case on appeal that, at the close of the trial defendant moved for a new trial upon the grounds specified in § 999 of the Code of Civil Procedure, that, such notice was denied, and that the notice of appeal states that the appeal is from the judgment, as well as from an order denying a new trial, no such order is presented to us. Waiving that matter, however, and considering this appeal as from the judgment and order described, we can discover no sufficient ground for their reversal.

Assuming the learned trial justice to have been in error in refusing to dismiss the complaint when plaintiff rested, for insufficiency of proof, such a defect would have been sufficiently cured to render defendant’s exception of no avail if either party thereafter supplied the necessary evidence. Painton v. The Northern Central Railroad Co., 83 N. Y., 7.

When the evidence was closed it appeared from the testimony of witnesses and the documents introduced that the defendant, trading under the firm name of Cyprien Fabre & Co., entered into-a written agreement with the plaintiff whereby he promised and agreed that during the year 1888 all steamers belonging to his “ line ” at Rew York or Brooklyn should be sent to plaintiff’s pier and that for the use of such pier he would pay a specified daily rent; that the steamer “ Iberia ” arrived at New York on June 17, 1888, and remained until July 4th following, without having been sent to plaintiff’s pier; that upon her arrival she was sailing under the colors usually displayed by defendant’s steamers, was taken charge of by defendant’s agents, Messrs. James W. Elwell & Co., one of whom told plaintiff that the “Iberia ” would probably receive her outward freight at his pier.

It also appeared that the “Iberia” was the property or under the control of, the defendant; that she was under a contract of affreightment to Phelps Bros. & Co., of London, which contract had been entered into between the latter firm and the defendant, and that the captain and crew were the employes and under the direction of the defendant or his agents. Except in trivial respects these facts were wholly uncontradicted, the sole contention of the defendant having been that the “ Iberia ” did not belong to the “ line ’’ of steamers mentioned in the agreement. From the agreement, however, it did not appear that at the time it was entered into defendant was operating more than one “ line ” of steamers, or thjat only the steamers of a particular “line" belonging to him were intended to be affected thereby. We think, therefore, that the facts proved would justly sustain a finding that the “Iberia” belonged to the defendant’s “line,” and was among those for which the use of plaintiff’s pier was contemplated by the agreement

The facts were properly submitted to the jury, and being, as above stated, mainly uncontradicted, we cannot say that their finding that the “Iberia" was within the agreement was either contrary to law, or contrary to the evidence, or against the weight of evidence.

Respecting the defendant’s counterclaim, the trial judge charged the jury that the facts proved by defendant entitled him to a recovery ; that the amount of such recovery should be determined by them and that they should deduct the sum found due the defendant from the amount found due to the plaintiff. At the request of plaintiff’s counsel, the judge further charged that, in arriving at the amount to be awarded to the defendant upon the counterclaim, the jury should take into consideration the additional facilities extended to the defendant by the plaintiff for the loading and unloading of his steamers during the time that the pier was undergoing repairs. No exception was taken to this part of the charge, and the jury having specifically found that any damage which had accrued to the defendant from the lack of sufficient room and for extra labor, while the pier was being repaired, was offset by the additional facilities extended by the plaintiff, it is unavailing to urge on appeal that the offer and acceptance of these additional facilities were not pleaded as a defense or in mitigation of damages, or that there was no evidence to support the charge. The objection should have been made while an opportunity for the correction of- the supposed error still remained. Mallory v. Tioga R. R. Co., 3 Abb. Ct. App. Dec., 139 ; Osgood v. Toole, 60 N. Y., 475.

But it was not error for the trial justice to charge the jury that they should consider the benefits derived by defendant from any additional facilities afforded him by the plaintiff. In view of his liability to the defendant, it was incontestably the plaintiff’s right to seek to reduce the damage by any means acceptable to the defendant; and if, from the acceptance and use of such means, the defendant derived any advantage which tended to diminish the damage which he would otherwise have sustained, the plaintiff was entitled to be credited therewith in the computation of defendant’s loss, and such facts were admissible under plaintiff’s general denial interposed to defendant’s counterclaim. O'Brien v. McCann, 58 N. Y., 373. Plaintiff’s testimony, not objected to or struck out, shows that during the time the pier was being repaired defendant occupied without additional expense another pier, the use of which was furnished by the plaintiff, and this evidence was sufficient to support the charge.

The other exceptions to the rulings on the trial were not specially urged on the argument of this appeal and are not of sufficient merit to authorize us to disturb the proceedings in the court below.

The judgment and order appealed from should be affirmed, with costs, upon plaintiff filing a stipulation consenting to the affirmance of such judgment upon his cross appeal in this action. See Goodsell v. The Western Union Tel. Co., 109 N. Y., 147; 15 N. Y. State Rep., 73.

Allen and Pryor, JJ., concur.