author: Bookstaver, J.

text:
    Frank W. Miller et al., Ex’rs, Resp’ts, v. Samuel Zimer et al., App’lts.

      (New York Common Pleas, General Term,

      Filed February 7, 1887.)

    1. Evidence—Admission op testimony op deceased witness taken on FORMER TRIAL.
    Where the testimony offered was given in a legal proceeding, between the same parties, and where the opposing party had ihe power to cross-examine, and was legally called upon to do so, the testimony so given is , always admissible in evidence after the death of the witness, in a subsequent trial between the same ] orties, especially when both the uirect and cross-examination are introduced.
    2. Complaint—Motion to dismiss.
    A motion, to dismiss the complaint for want of sufficient evidence to submit it to the jury, having been general and applied to all the defendants. and a sufficient case having been made against some of them, it is properly submitted, and they having found against all, the verdict will not be disturbed.
    Appeal from a judgment entered on the verdict of a jury, at trial term.

      E. Beneville, for resp’ts; Townsend &Dyett and Einstein, for app’lts.
   Bookstaver, J.

This action is brought by the executors of Christopher Miller against the defendants, to recover damages occasioned by a conspiracy to defraud Miller; and the complaint alleges a “criminal scheme and conspiracy to borrow and obtain money from him upon worthless securities.”

The alleged conspiracy seems to have been this: Samuel Zimer executed to Solomon Stransky his bond and mortgage for $15,000. Stransky and Henry Zimer (Samuel’s brother) instructed Edward K. Raubitschek to sell the bond and mortgage, and, at the same time, falsely and fraudulently, in a writing delivered to Raubitschek to show to purchasers, stated that Stransky was the lawful owner and holder of the bond and mortgage, and that they were bona fide instruments. Raubitschek presented the bond and mortgage and writing to the attorney of the testator, making the same representations, which he knew to be false, with intent to defraud the testator. The latter’s attorney communicated these representations to him, and he, relying on them, bought the bond and mortgage.

Samuel Zimer also executed a writing on the sale of the bond and mortgage, stating that they were valid, and there were no equities or defenses against the same, and they were free from usury. Stransky, by the assignment of the bond and mortgage to the testator, represented there was due on it the full amount expressed therein.

The testator paid for the bond and mortgage $13,000, believing it to be valid; but the defendants knew the representations to be false, etc., and made them with the intent to cheat the testator, in pursuance of the conspiracy.

The mortgage not being paid, an action was commenced to foreclose the same, in which Zimer, the mortgagor, set up that the mortgage was without consideration, and void.

The judge who tried that action found that it was, and that it was purchased by the testator because of, and and relying upon the representation of the defendants.

In consequence of the premises, the testator was defrauded and compelled to maintain an expensive action, and subject to counsel fees, and loss of the difference between the amount paid by him for the bond and mortgage and the amount represented to be due thereon.

On this state of facts plaintiffs demanded judgment for the counsel fees and this difference.

Defendants, in their answers, denied the fraud and conspiracy, and set up that Samuel Zimer paid the testator the sum which he had paid for the bond and mortgage, and that the judge who tried the foreclosure action decided the testator was entitled to recover that amount only, and that the bond and mortgage was valid in his hands to the extent of that amount, and that he was not entitled to recover of the said Samuel Zimer any part of the difference which he claims in his complaint, also that the plaintiffs accepted from Samuel Zimer the full amount of principal, interest and costs so found due by that decision; and that, at the request of Samuel Zimer, they assigned the bond and mortgage to one Maria Moss.

This action has been twice tried. Upon the first trial the court dismissed the complaint.

On appeal to the general term the judgment of dismissal was reversed and a new trial ordered.

Upon that reversal the court. decided that this action could be maintained by the executors of Christopher Miller, deceased, and that a recovery could be had against the defendants upon proper proof.

All of the questions raised by this appeal were then •decided against the present appellants, except two, and it would not now be profitable to restate the reasons of the court for such decision.

The first new question presented for consideration arises upon the exception taken by the defendants to the admission of the testimony of Lewis P. Kircheis given upon the former trial. He was the attorney for plaintiff’s testator in the original purchase of the bond and mortgage, and it was admitted by defendants that he died after the first trial and before the second.

Defendants also admitted the accuracy of the transcript •of the deceased witness’ evidence, but objected to the competency of the testimony. Where the testimony offered was given in a legal proceeding between the same parties, and where the opposing party had the power to cross-examine, and was legally called upon to do so, the testimony so given is always admissible in evidence after the death of the witness in a subsequent trial between the parties, especially when both the direct and cross-examinatians are introduced. 1 Greenleaf on Evidence, §§ 163, 166; Lawson v. Jones, 6 How. Pr., 424; Mayor of Doncaster v. Day, 3 Taunt., 262; Glass v. Beach, 5 Vt., 172.

The other question arises on the motion to dismiss the complaint on the ground that there was no evidence sufficient to be submited to the jury of the fraud alleged in the complaint.

This was general, and applied to all the defendants. The evidence on this trial was substantially the same as that given on the former trial, and this court on the former appeal held that independently of the findings, the admissions in the pleadings and the testimony made a case against some of the defendants, and that there was sufficient to go to the jury on these; and, in this conclusion, we think it was right; and the jury having, on proper instructions by the court, found against all the defendants, we will not disturb their verdict.

We are, therefore, of opinion that no error was committed in the trial of this action, and that the judgment .should be affirmed.

Larremore, O. J., and Van Hoesen, J., concur.


source: Caselaw Access Project

author: Per Curiam

license: Public Domain

text:
    Emma B. Smith, App’lt, v. Alexander C. Chenoweth, Resp’t.

      (New York Common Pleas,

      Filed February 7, 1887.)

    1. Costs—Attorney’s lien—Right of party to set off ore judgment OF COSTS AGAINST ANOTHER IN THE SAME ACTION.
    Costs do not primarily belong to the attorney, lie has a lien upon them for his compensation, and to that extent he is regarded as an equitable assignee of the judgment. But where the costs are recovered in one action, the equities of the parties are superior to the lien of the attorney, and a set oS may be orde' ed, the lien only attaching to the balance remaining in favor of the client.
    2. Same—Appeal—From city court—Code of Civil Procedure, § 3191.
    An appeal may be taken from an order of the general term of the city court to the court of common pleas, seiting off a judgment for costs in favor of one party in reduction of the judgment in favor of the other.

      R. J. Morse, for app’lt; J. C. O'Connor, Jr., for resp’t.
   Per Curiam

The plaintiff’s complaint sets up three causes of action. The defendant demurred. The demurrer as to the first and second causes of action was overruled, and was sustained as to the third, cause of action. Issue was joined upon the first and second causes of action, and the plaintiff recovered judgment on May 28, 1886, for the sum of $307.72, including $101.26 costs.

Judgment was entered in defendant’s favor on demurrer to the third cause of action on the 2nd day of March, 1886. Prom this judgment an appeal was taken to the general term of the city court and the judgment below was affirmed with costs on the 28th day of June, 1886. Judgment was entered on this affirmance on the 6th day of July, 1886, awarding the defendant. $76.02 costs. Subsequently the-court at special term ordered the judgment of $76.02 costs on appeal in favor of defendant and against the plaintiff, to be set off in reduction of the plaintiff’s judgment of $307.72. This order was appealed from and was reversed by the general term of the city court.

The set off sought here is of costs incurred in the same-suit. It is well established that a judgment in one action cannot be set off against a judgment in any other action, to the injury of the attorney. This is not what is asked for in this case.

The costs which accrue in an action, whatever their character may be, are not the property of the attorney; they belong to the party. The attorney has a lien upon them for his compensation. Whether an attorney’s lien for costs is superior in equity to the rights of a party to set off one judgment of costs against another in the same action, is the question presented. There is conflict of authorities upon the subject. We are controlled by the decision of the general term, of this court upon the precise question, involved in this case.

In Hoyt v. Godfrey (11 Daly, 278), it was held that interlocutory costs allowed to the defendant, might be set off against a judgment rendered in favor of the plaintiffs in the same action, notwithstanding a promise by the party to whom the costs were awarded that they should belong to his attorney.

This rule is well supported in Sanders v. Gillett (8 Daly, 183), Warden v. Frost (35 Hun, 141), and Catlin v. The Adirondack Co. (22 id., 493). And it is also in accordance with the English rule as stated in Chitty’s Archibald, vol. 1, page 110: “It (the lien), extends only to the balance which is ultimately to be paid over to the client upon the general and final result of the cause. Whatever costs may be due to the opposite party in the particular case, whether they are costs of special issues found for him or of interlocutory proceedings, he has a right to deduct them without regará to the amount which may be due from the client to the attorney.” See Scott v. Richebourg, 11 C. B., 447. We think this is the fair rule and the one calculated to produce the least injustice.

The rule in a case like the one under consideration may be safely stated to be this: The costs do not primarily belong to the attorney; he has a lien upon them for his compensation, and to" that extent he is regarded as an. equitable assignee of the judgment. But where the costs are recovered in one action, the equities of the parties are superior to the lien of the attorney, and a set-off may be ordered, the hen only attaching to the balance remaining in favor of the client.

In the case of Tunstall v. Winton (31 Hun, 219), it was held that the costs of a successful appeal legally belonged, without any assignment, to the defendant’s attorney, and that they could not be set off against the general caste awarded to the plaintiff.

Although in Garner v. Gladwin (12 Weekly Dig., 10) the same court held that where damages and costs were recovered in the same action, the plaintiff was entitled to insist upon the set-off of one against the other, unless an. assignment had been previously made to the attorney, transferring to him a paramount right to demand and collect such costs.

The case of Tunstall v. Winton is referred to in the court below as controlling, on the ground that the decision.' has been affirmed by the court of appeals in 96 N. Y., 660. It is also quoted elsewhere as having been affirmed in the court of last resort.

From the statement of the attorney for the unsuccessful party in the appeal annexed to the appellant’s brief, and from an examination of the printed cases on appeal in the cases of Tunstall v. Winton (reported in 96 N. Y., 660), it appears that the decision in that case (reported in 31 Hun, at page 219) was never taken to the court of appeals, and that .tne cases in 96 N. Y., 660, are the cases of Tunstall v. Winton, reported in 31 Hun, at pages 222 and 231.

We are of the opinion the order is appealable to this court. Code Civ. Pro., § 3191, subd. 3.

We think the order of the general term appealed from should be reversed, and the order of the special term affirmed, with costs of appeal.


text:
    Samuel K. Wilson, Resp’t, v. The Metropolitan Elevated Railway Company, App’lt.

      (New York Common Pleas, General Term,

      Filed February 7, 1887.)

    3. Promissory note—Corporation—Liability op upon its notes issued • IN PAYMENT OF SALARY—EXTENT OF INQUIRY REQUIRED OF PERSON CASHING THEM.
    A note of a corporation, signed by its president, endorsed by him in blank and presented by him, does not put the party cashing it upon inquiry as to whether or not it was given for his salary, nor whether or not the salary had been earned, nor whether there was any by-law or resolution giving the salary named before the services were rendered, nor whether the directors had exceeded their powers or had done any wrong, but should put him on inquiry as to whether or not the president was using the obligations of the corporation in his individual business and thus committing a breach of trust, and nothing else whatever.
    2. Same—Representations of an agent of extrinsic facts.
    One who takes a note or check, purporting to be given by a corporation for goods bought or services rendered, is not bound to inquire whether the goods were bought or services wrere rendered, for those are extrinsic facts peculiarily within the knowledge of the agent, and a party dealing with an agent may take the representations of the agent, as to any extrinsic fact which rests peculiarily within the knowledge of the agent, and which ■ cannot be ascertained by a comparison of the power with the act done under it.
    Appeal from a judgment entered against the defendant ©n-a verdict rendered by direction of the court at trial term.

      Barlow & Wetmore, for resp’t; Davies, Cole & Rapallo, for app’lt.
   Bookstaver, J.

Plaintiff sued on a promissory note for $2,500 made by the defendant to its own order.

At the close of the testimony each party moved for a direction of a verdict in its favor; both parties thereby conceding that the facts in the case raised questions of law only to be determined by the court, and that there were no questions of fact to be passed upon by the jury.

Upon such request, the court directed the jury to render a verdict in favor of the plaintiff: and against the defendant, subject to the opinion of the court.

Thereafter, and during the same term, the court, after hearing counsel for the respective parties, sustained the verdict, and judgment was entered thereon for.$3,117.21.

Defendant made a motion for a new trial, which was denied. Defendant appealed from both the judgment and order.

As far as the making of the note is concerned, the material facts to be considered upon this appeal are as iollows:

The defendant is a duly organized domestic corporation.

Ón the 20th of May, 1879, it leased its railway, franchises, etc., to the Manhattan Railway Company, a duly organized domestic corporation, which thereupon, took possession of defendant’s railway, and has, ever since, with unimportant exceptions, operated the same.

Sylvester H. Kneeland was a stockholder, a director and the president of the defendant from the 8th of November, 1882, until August, 1884.

What services he rendered, if any, as such president, does not appear.

The office of president, up to about the time of making the note in question, had never been a salaried one.

No agreement was made by the defendant to pay Knee-land a salary, or to give him any compensation for his services, before the 5th of June, 1884. Shortly after three o’clock, on the day last named, committees representing the defendant and the Manhattan Railway Company, entered into a memorandum agreement for the merger and consolidation of the two companies.

This agreement that “the Manhattan company consolidated to assume all liabilities” (of the defendant) * * * “and to receive all assets” (of the defendant.).

Subsequently the two corporations were consolidated substantially on the basis stated in the memorandum.

About 3:30 p. m. on the same day, at a meeting of the board of directors of the defendant, regularly appointed, the committee of that company presented the memorandum agreement so entered into and it was unanimously adopted. At the same meeting the following resolution was unanimously adopted: “Resolved, That S. H. Kneeland, the president of the company, shall be paid a salary of $25,000 per annum from time of his election as such.” Mr. Knee-land presided at this meeting and put the resolution to vote.

On the 18th of June, 1884, another duly appointed meeting of the directors of the defendant was held, at which the following resolution was unanimously adopted: “ That the president be, and he is hereby authorized to use the credit of the company by issuing and negotiating its notes or otherwise for paying the salary of said president, said notes to be signed by the president and counter-signed by the treasurer in the usual way and form and not fro exceed the limit of the amount heretofore authorized.” Mr. Kneeland presided at this meeting and put the question to vote.

In accordance with the provisions of the last resolution notes were issued signed by S. H. Kneeland, as president of the defendant, and counter-signed by the treasurer, made to the order of Mr. Kneeland, and endorsed by him, aggregating, as it is claimed, $48,950.

These notes matured at various dates from August 8 to October 31, 1884. This suit is brought upon one of such notes, which was transferred directly to the plaintiff by Kneeland under the following circumstances:

On May 26, 1884, plaintiff cashed for Mr. Kneeland a check for $7,650, drawn by the Mercántile Trust Company on itself, by giving him the full value thereof. Plaintiff held the check uncollected until June 28, 1884, on which day Kneeland sent to him the note in suit and two others of the notes issued as above stated of like amount and tenor and varying slightly in dates.

The plaintiff then discounted the three notes, giving Kneeland, as the proceeds of the discount, the check of the Mercantile Trust Company instead of cash, and charging him with the $7,650 advanced to him on May twenty-five, together with interest to the date of the discount, and crediting him with the three notes discounted, less the interest thereon, to their maturity. This left a balance against Kneeland of $283, which the latter paid to the plaintiff in cash.

■ We think this was the same in effect as though the plaintiff had collected the Trust Company’s check, for which he had paid value, and which he then owned, and had paid cash to Kneeland on the discount of the three notes.

Two of the notes thus discounted were paid; the one in suit was not, and hence this action.

It thus appears that the plaintiff obtained the note before maturity and for value, and he would not be affected by a failure or want of consideration between Kneeland and the defendant, unless he had notice of it.

When a corporation gives a note for goods bought or services rendered, it cannot be possible that a person who takes the note for value, before maturity,- is bound to inquire whether the goods were bought or the services were rendered, and we think this an elementary principle of law.

Indeed, defendant’s counsel virtually conceded, on the argument, that plaintiff paid full value for the note in controversy, before maturity; but claims that he had notice of irregularities in the inception of the notes, or the circumstances attending the making of the same, and the transfer to him were such as to put him on inquiry as to their validity.

It is not claimed that plaintiff had actual notice of any such irregularities or infirmity in the notes, but it is claimed that the note in suit was signed by the president of the corporation, and indorsed directly to himself, its president and trustee; and that the plaintiff was thus notified that it was a contract between the corporation and one occupying towards it a fiduciary or trust relation, which defendant could repudiate at its option.

An examination of the note shows that it was not indorsed directly to Kneeland himself, but was indorsed in blank, which was equivalent to making it payable to bearer.

The notes being thus presented to plaintiff, we think did not put him on inquiry as to whether or not they were given for his salary, nor whether or not the salary had been earned; nor whether there was any by-law or resolution giving the salary passed before the services were rendered; nor whether the defendant’s directors had exceeded their powers or had done anything wrong in the premises, but should have put him on inquiry as to whether or not Mr. Kneeland was using the obligations of the defendant in his individual business, and thus committing a breach of trust, and of nothing else whatever. And, if the fact had turned out according to the appearances, and he had diverted the notes of the company to his own use, without authority, the plaintiff could not have recovered on them. But the fact was that Kneeland was not misapplying the paper of the corporation, but was using it exactly in accordance with the resolution of June 18, 1884.

It is analogous to the case where one partner uses firm paper, apparently for his individual purposes. If such use was unauthorized, and the person taking it knew it was unauthorized, there could be no recovery by him on such paper; but if the firm authorized such use, or if it should turn out that the- business although, in form, for the benefit of the individual, was in reality a copartnership transaction, then the holder of such paper could recover.

Appellant also contends that one who purchases a note from an agent or trustee of a corporation, must at his peril, see that its issue and negotiation are within the authority under which the agent can legally act, and that the plaint-, iff, therefor, was bound to inquire by what authority Kneeland signed and negotiated the note in suit.

Granting that this is so, then had plaintiff made inquiry on this subject, the resolution before mentioned would have clearly shown by what authority Mr. Kneeland signed and negotiated the noté; and that apparently, it was within the legal power. of the directors to pass. Such inquiry would not have shown that there was no authority in the directors to make this provision for salary; nor that' the salary had not been earned.

But if the plaintiff knew, or was bound to know, that the notes were given for defendant’s salary, he was not bound to enquire whether the salary was earned, or was legally payable; for one who takes a note or check, purporting to-be given by a corporation for goods bought, or services rendered is not bound to inquire whether the goods were bought or the services were rendered; for these are extrinsic facts, peculiarly within the knowledge of the agent; and it has been held that a “party dealing with an agent * * * may take the representation of the agent, as to any extrinsic fact, which rests peculiarly within the knowledge of the agent, and which cannot be ascertained by a comparison of the power, with the act done under it.” Butchers and Drovers’ Bank case, 16 N. Y., 135.

In that case the teller of the bank had authority to certify checks, when the drawer had funds, and he certified a Check where the drawer had no funds; but the bank was-held bound, because the question of ‘‘ funds or no funds ” was an “extrinsic fact peculiarly within the knowledge of the agent.” In that case the natural way in which the person taking- the check could have ascertained that fact, was -to inquire of the teller and he, by the act of certifying the check, had already represented that there were funds. North River Bank v. Aymar, 3 Hill, 262.

An agent who had authority to make notes in the business of his principal, made them in his own business and had them discounted. It was held that the- mere act of making the notes, and procuring them to be discounted, was an assertion, by the agent, that the acts were done in the business of his principal, although the agent made no representations on that subject, other than presenting - the notes for discount.

This principle is held in many- other cases, and rests upon the fact that the doing of the act, and the exercising the authority by the agent, is- an assertion by the principal, that the proper conditions exist; and we think that this principle applies to this case.

Having arrived at this conclusion,-it is unnecessary to examiné the other questions argued upon the appeal.

If the directors excéeded their authority, or were guilty of fraud or ■ conspiracy in granting the salary, or authorizing-the execution or negotiation- of the notes, they would be liable to the parties injured,--in- a proper - action, brought to recover for such injuries. We therefore think that the judgment should be affirmed with costs.

Larremore, C. J., and Daly, J., concur.


author: Larremore, C. J.

text:
    Walter Powers, Resp’t, v. Isabella v. Hogan, App’lt.

      (New York Court of Common Pleas, General Term,

      Filed February 7, 1887.)

    1. Evidence—Finding in other action when admissible.
    Findings found against this defendant by the judgment in another action, to which both the plaintiff and defendant herein were parties, were admissible in evidence in this action as declarations and admissions of the defendants.
    2. Same—Evidence in other actions—When admissible.
    The testimony of this plaintiff, when called as a witness in said other action by the defendant herein, was admissible as evidence in this action, to prove the fact which was found in defendant’s favor in said other action, and could be considered by the court in reaching a decision.
    8. Contract—Rescission—What amounts to—Effect—Quantum meruit.
    The refusal of one party to a contract to permit further performance of the contract by the other party thereto, operates as a recission of said contract, whereby the other party becomes entitled to recover upon a quantum meruit for what he has done under it. The contract being repudiated, the certificate required by it is not necessary in order to recover.
    Appeal from a judgment entered upon the report of a referee in favor of plaintiff in an action for the value of certain work, labor and services.

      F. D. Chadsey, for resp’t; Earley & Prendergast,' for app’lt.
   Larremore, C. J.

It appears by the evidence in the case that the defendant was the owner of certain real estate, situated at One hundred and nineteenth street and Fifth avenue, in the city of New York, and on or about December 9, 1878, made a contract ■ with the ■ plaintiff whereby he agreed to do the mason work and furnish the materials to erect twenty buildings on the said lands, to the height of either two stories and basement, or three stories and basement, as should be required by defendant, and also to furnish and set- coping on all the walls over the roof, and to plaster the top stories, for which the defendant agreed to pay the sum of $8,500, if the houses should - he built two stories and basement, and in case said houses should be built three stories and basement, she agreed'to pay the sum of $11,000. ■ ■ ■:

The plaintiff did a large amount of work under the written contract, and also extra work under a subsequent verbal agreement upon the buildings in question. Various delays occurred during the progress of the work, for which the plaintiff was not responsible, and the present cause of action has been decided upon.a rescission of the original contract, and plaintiff’s right to recover upon a quantum meruit for the work done and materials furnished under the contract.

There seems to be no dispute that the amount and value of the work, and materials found by the referee, is sustained by the evidence.

At the request of the defendant, the referee found that both parties waived performance of the contracts at the time mentioned, and that the plaintiff continued to work thereunder after that time.

The finding that the contract in.question continued until September 8, 1880, is clearly supported by the evidence in the case. The exception as to the admission in evidence in this case of the findings in the Kenny judgment was not a ground of error.

It may be questionable whether the findings objected to were admissible, but the testimony given by Mr. Powers, who was a witness called by Mrs. Hogan, certainly was admissible to prove the facts which were found in her favor, that Powers was still working under his contract at the trial of that action.

As an admission on the part of Mrs. Hogan by one of her own witnesses, the testimony was entirely competent, and the referee had the right to consider it in reaching a conelusion. Mrs. Hogan offered this evidence without explanation, and now objects to it. In Clark v. Dillon (97 N. Y., 370), the defendant was held by an admission made in Ms answer. The court in that case said: “Unexplained, it .must be taken as an admission of the existence of the facts therein asserted.”

In Anderson v. Third Avenue R. R. Co. (9 Daly, 487), tins court held that a fact found against the defendant by a judgment was prima facie evidence against him of the fact so established in an action by another plaintiff.

I reached the conclusion, therefore, that the finding objected to was admissible as a declaration and admission of the defendant as a part of the judgment record in the Kenny Case, to which the plaintiff and defendant were Both parties. The refusal of defendant to permit further performance of the contract on the part of the plaintiff, •operated as a rescission of the contract, whereby he became ¡entitled to recover upon a quantum meruit for what he had lone under it. Powers v. Hogan, 67 How. Pr., 255; Clark v. The Mayor, etc., 4 N. Y., 338; Terwilleger v. Knapp, 2 E. D. Smith, 86; Howell v. Gould, 2 Abb. Ct. App. Dec., 418.

The certificate of John Hogan upon a contract which the defendant had repudiated was not necessary under the ruling in Kingsley v. City of Brooklyn, 78 N. Y., 216.

The referee appears to have tried the case upon correct propositions of law, and I am of opinion that the conclusion should be sustained, and that the judgment appealed from should be affirmed, with costs.

Allen and Bookstaver, JJ., concur.


text:
    David Kahnweiler, Resp’t, v. Andrew J. Smith, as Ex’r, etc., App’lt.

      (New York Court of Common Pleas, General Term,

      Filed February 7, 1887.)

    1. Evidence—When affidavits admitted to prove ownership.
    In an action brought to recover a balance due upon an account for goods sold and delivered to defendant’s testator for the use of a certain steamer alleged to have been owned by testator, affidavits in regard to the ownership of said vessel filed in the custom house, may be admitted in evidence as declarations by a party in interest to offset his own statement or that of his legal representative.
    3. Same—Exception—When too general.
    The objection to the admission of said affidavits in evidence as incompetent was too general to avail the appellant on this appeal.
    3. Executor and administrator—Costs—When chargeable with.
    The circumstances of this case do not show such a presentation of the claim and refusal of its payment, or to refer it by the executor, as to make the estate chargeable with costs.
    Appeal from a judgment on the verdict of a jury in favor of the plaintiff in an action for the value of certain goods sold and delivered to the defendant’s testator, for the use of a certain steamship, which he was alleged to have owned.
    This action was brought to recover a balance due upon an account for goods sold and delivered to Alexander M. 0. Smith in his lifetime, for the use of certain steamers alleged to have been owned by him. The defendant claims that the sale and credit was not given to the deceased, but to his brother, Philemon H. Smith. Alexander died after the goods had been delivered. During his life he had two brothers, namely: Andrew J. (this defendant) and Philemon H., who superintended and managed his business. The testimony shows that an order for the articles in question was received by the plaintiff. This was supplemented by a letter signed A. M. C. Smith per P. H. Smith.
    It further appeared from plaintiff’s testimony that he had had dealings with A. M. 0. for a number of years, and that his business transactions during all that time had been with him personally.
    There was no oral evidence offered by P. H. Smith to dispute plaintiff’s claim, but documentary evidence was offered showing that at about four months before the sale of the goods in question A. M. C. Smith had given power of attorney to this defendant authorizing him to dispose of the property of the deceased, real or personal. Under this power of attorney, dated February 17, 1883, but not recorded until May 22, 1885, a transfer of the steamboats involved in this litigation was made. The plaintiff avers that he never had any knowledge of this secret transfer.
    In respect to the question of costs, it appeared from the affidavit of the plaintiff presented on his application for costs, that he presented his claim on or about August 25, 1883, that he saw the defendant about May, 1884, and called his attention to his claim, and that he admitted the claim was good and promised to pay it as soon as the estate could realize some money out of sales. That he presented his claim with vouchers, duly verified, May 3, 1885, and that the defendant never disputed or questioned the claim until September 5, 1885, when he notified plaintiff that he refused to refer it. In his answering affidavit the defendant stated that letters testamentary were issued to him October 10, 1883, that he had no recollection of ever seeing; any bill from plaintiff, and that no one on August, 25,1883, was authorized to receive any claims against the estate, and that the time to present claims expired October, 28, 1884, and denied any presentation in May, 1884, or any until September, 1885. The trial judge certified that the claim was presented to defendant within the time limited, that defendant unreasonably resisted payment and awarded costs against the defendant as executor.

      Kurzman & Yeaman, for resp’t; Butler, Stillman & Hubbard, for app’lt.
   Larremore, C. J.

A clear question of fact was raised by the testimony and fairly submitted to the jury, whether Philemon H. Smith was the agent of A. M. C. Smith in the transactions above referred to. Upon this point, a verdict of the jury is decisive. The long interval of time that elapsed between the transfer of the boats and its public record, was at least a matter of suspicion and the jury had a right to take that fact into consideration in adjudicating the rights of the parties.

The only exception in the case that appears to deserve consideration is that certain affidavits in regard to the ownership of the vessels were produced from the custom house. The objection to this evidence was that it was incompetent. This objection was too general in its character to avail appellant upon this appeal. The specific ground of the objection was not stated. If it had been the respondent might have so framed his question and avoided the objection. Moreover an affidavit of ownership in a question of liability of this character, might well be held as a declaratian by a party in interest to off-set his own statement, or that of his legal representative in an action of this nature.

After examination of the testimony and the authorities cited in support of the claim, I do not think that costs should be awarded against the executor in this action. It is not shown that there was such a presentation of the claim and refusal of its payment or to refer it as to make the estate chargeable with costs.

To this extent the judgment should be modified and as modified affirmed.

Allen and Bookstaver, JJ., concur.


author: Van Hoesen, J.

text:
    Honora Corrigan, Resp’t, v. Dry Dock and East Broadway Railroad Company, App’lt.

      (New York Court of Common Pleas, General Term,

      Filed February 7, 1887.)

    1. New trial—Exception—Error that does not prejudice not a GROUND FOR NEW TRIAL.
    A new trial will not be granted if it is apparent that in no instance was the appellant prejudiced by the error pointed out by an exception, although the exceptions may have had merit.
    2. Damages—What mat be proved to snow.
    The plaintiff’s claim for damages being for loss of time occasioned by her disability to pursue her calling, it was proper for her to prove that she had a business of her own, that she was dependent upon her own exertions for support, and that her husband had died since the injury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a new trial.

      L. Edgar Aron, for resp’t; Robinson, Scribner & Bright, for app’lt.
   Van Hoesen, J.

From a very careful reading of all the testimony I have come to the conclusion that it is extremely doubtful whether the sore upon the plaintiff’s fore-arm was caused by the fall she received in alighting from the car.

The testimony would have led me, had I been on the jury, to the belief that the sore was to be traced to some bad condition of the plaintiff’s blood. It is true that one of the physicians swore that the sore would not be so persistent if it were caused by a diseased condition of the blood, and that, therefore, it was to be attributed to local causes; but it is not, in my opinion, the duty of the juror to accept the theories of every doctor that is called as a witness in cases of this description.

There was in the testimony of the plaintiff herself sufficient to show that the sore was not the result of a local injury, but of a disordered system. The plaintiff said, “when I was thrown down there was a little light scratch, and then it festered and mortified like when I rubbed it with soap and water, or with soda.” There was no bruise, no fracture, no swelling—nothing more than a little light scratch. If under the action or soap that scratch inflamed and developed into a running sore, almost anybody but an expert on the witness-stand would conclude that it was the bad blood of the patient, and not the scratch, that was the proximate cause of the sore. But the defendant did not combat with testimony the opinion of this expert when it had the opportunity, and if the jury chose to accept that opinion as one that could not be disputed, I do not see why the court should interfere.

If the sore were the result of the fall, and if that sore (and not muscular rheumatism) stiffened the plaintiff’s arm so that she could not raise it as high as her head; if she was for three months incapacitated for business, and a sufferer from pain, I cannot say that the damages are too large. I do not say that had I been on the jury I should have acquiesced in the verdict, or that I think it the most sensible one that could have been rendered, but it is not so entirely opposed to the evidence that one can see that passion, prejudice, bias or corruption controlled or influenced the action of the jury, or that the jury failed to use their common sense in deciding the case. Minick v. City of Troy, 19 Hun, 253; affirmed, 83 N. Y., 514.

With respect to the exceptions taken by the defendant, though some of them have merit, they seem to me not to require that a new trial should be granted, for it is apparent that in no instance was the defendant prejudiced by the error pointed out by an exception.

But there are exceptions that were not well taken. Among these are the exceptions to the rulings allowing the plaintiff to prove that she was in business at the time of the accident, and that her husband had died since she received her injuries.

The plaintiff claimed damages for loss of time occasioned by her disability to pursue her calling and earn her livelihood, It was proper for her to prove that she had a business of her own. For the time that she was prevented by her injuries from attending to her business she was entitled to recover compensation. Nor does it seem to me ■ to have been improper to permit the plaintiff to prove that she was a widow. Of course, if immaterial testimony likely to arouse the sympathies of the jury be offered, it is the duty of the court to exclude it, but I conceive it to have been material for the plaintiff to show that she was a laboring woman, engaged in a calling that necessitated the use of both hands, and that being without a husband, she was dependent upon her own exertions for a living.

The jury ought to have been fully informed as to the plaintiff’s occupation, and as to the necessity she was under of pursuing, it. The pecuniary loss resulting from an injury to a plaintiff who spends his time in pleasure seeking and dissipation is not so great as is such a loss to a bright and diligent business man. Boteler v. Baltimore R. R. Co., 38 Md., 568. Nor is the loss of an arm to a retired gentleman so serious in its consequences to him as is the loss of an arm to one who is compelled to use it in gaining his bread.

Although I think it was erroneous to permit the inquiry, “Do you support yourself now?” I cannot see how the answer could have prejudiced the defendant. The question was immaterial, for the point in controversy was, not whether the plaintiff did, but whether she was physically able to support herself.

The answer was that her son supported her, giving her an allowance every month, because since the accident she was not able to do much. The defendant could not have been injured by the inquiry and the answer.

So the inquiry, “Is the injury to the shoulder a necessary result or sequence of the injury she sustained?” could have done no harm, for the answer was, “It may be, if she received a severe injury; but I could not swear that she received any injury to the shoulder.”

Furthermore, the witness positively refused to say anything to warrant the inference that he believed the sore on the foro-arm, or the alleged difficulty iu raising the arm, to have been anywise traceable to the plaintiff’s fall. It is fair to infer from the testimony of the witness that he was sceptical as to the fall having produced the sore on the arm.

The question, “ Do you know of employees having been discharged for an accident occurring on their cars;” was objectionable, but the answer did no harm; it was, “I never mot with an accident where the driver was to blame.”

I think it was erroneous to strike out from the answer of the witness Gilbert the words, “I saw nothing to indicate to me that there was any injury to the arm.” The words were stricken out because the witness was not an expert, but it is a mistake to suppose that it required an expert to say whether a man walked lame, or used his arm as if it were lame.

The witness had already sworn that he had watched the plaintiff for the purpose of discovering whether there was any appreciable disability in her use of her arm; that she used her knife in her right hand (which it is said she cannot use with freedom, the oyster in her left hand and that she cracked and opened oysters, that she threw down the shells, and put the oyster on top of the counter; and the witness gave an illustration of the manner in which the plaintiff used her hands and arms.

He said that the plaintiff used her arms and then after giving these facts in detail, he summed them all up in the opinion that the court struck out. The facts upon which the opinion was founded were already in evidence, so that it is reasonably certain that the defendant was not injured by striking the opinion from the testimony.

One of the medical witnesses had said that he did not understand exactly what counsel meant to imply by the use of the word “serious ” as descriptive of an injury. When the counsel again used the word in examining another physician, the judge directed him to use another word, but did not otherwise' restrict the examination.

I see no objection to the word “serious,” but no harm could have resulted from temporarily banishing the adjective from the counsel’s vocabulary. He was left at liberty to use any other word, and he elicited from his witness all the facts, and all the opinions, that were in his possession.

There was no error in the charge.

I think the judgment should be affirmed, as should the order appealed from.

Larremore C. J., and Bookstaver, J., concur.


text:
    Marie Laserowitsch, Resp’t, v. William Reiman, App’lt.

      (New York Court of Common Pleas, General Term,

      Filed February 7, 1887.)

    1. Conversion—Good faith no defense.
    The good faith of the defendant constitutes no defense in an action for conversion.
    2.. Witness—How impeached.
    In order to impeach a witness by contradictory statements, Ms attention must first have been eallud to the time and occasion of alleged statements.
    3. Evidence—Admission of records.
    The witness having referred to the record and professed ignorance as to result of the charge, and the record not having been used for purpose of contradicting, but of enabling him to refresh his memory, there was no error in the admission of the record as a part of the cross-examination.
    Appeal from a judgment entered upon a verdict in favor of plaintiff.
    This action was brought to recover damages for the conversion of a diamond ring. It had been pledged, with other property, by the plaintiff to one Edward Materne, in 1881, as security for a loan. Subsequently she partially repaid the loan, and requested Materne to deliver the ring to her husband, who was instructed to bring the ring to her, but in disregard of such instruction, he pawned it with the defendant Reiman, in February, 1883. During the latter month, the plaintiff’s husband went with John F. Simpson to the defendant’s store, where Simpson advanced $225 on the ring, repaying Reiman’s advances out of that amount, and giving the balance, with the pawn ticket, to plaintiff’s husband. Simpson took the ring and retained it until April 9, 1883. On that date, the plaintiff's husband sold or gambled away the pawn ticket to one Albert Kirby. A clerk of defendant Reiman took the pawn ticket to Simpson’s and redeemed the ring, which the plaintiff never recovered. A demand was made upon the defendant on April 25, 1SS3, for the ring, which was refused.

      J. W. Fiske, for resp’t; Stanley, Clark & Smith, for app’lt.
   Larremore, C. J.

A question was raised as to the identity of the ring, but I think the testimony fully authorized the finding of the referee upon this point. A conversion of the ring in question was clearly established by the testimony; the taking of the ring by the defendant from Laserowitsch, in pawn, and delivering it up to Simpson clearly established that fact. Pease v. Smith, 61 N. Y., 477; Stephens v. Elwall, 4 Maule & S., 258; White v. Mechanics Bank, 4 Daly, 225; Spraights v. Hawley, 39 N. Y., 441; Boyce v. Brockway, 31 N. Y., 490.

The good faith of the defendant constitutes no defense to the action. See cases above cited, and there may be a fair inference upon the evidence that such good faith is not fairly established.

The objection raised at folio 70 to the question, “To whom does that ring belong?” constitutes no ground of error. De Wolf v. Williams, 69 N. Y., 621.

It seems to me that the conversion of the property about ¡February, 1883, is clearly established by the testimony, and that seems to dispose of the attempt to discredit the testimony of Rosenbaum as to any subsequent transaction. But even if that were otherwise, the decision of the referee upon conflicting evidence as to the second conversion should not be disturbed. Anderson v. Meislahn, 12 Daly, 149.

The exceptions at folios 122 and 123 are without merit. In order to impeach a witness by contradictory statements, his attention must first have been called to "the time and occasion of the alleged statements. Stacy v. Graham, 14 N. Y., 492; Sloan v. New York Central Railroad Co., 45 N. Y., 125; Hubbard v. Briggs, 31 id., 518; Gaffney v. The People, 50 id., 416.

There was no error in the admission of the record of the police court, as a part of the cross-examination of the witness Levy; he referred to the record and professses ignorance as to the result of the charge.

The record was not used for the purpose of contradicting Levy, but of enabling him to refresh his memory by showing the facts which he had either forgotten or was unwilling to tell. But even if there were error in this, the prior conversion of February sixth, was wholly unaffected by Levy’s testimony or by the referee’s rulings in relation thereto, and upon this' ground the judgment should be sustained.

I think the whole testimony, the judgment appealed from should be affirmed.

Allen and Bookstaver, JJ., concur.


author: Allen, J.

text:
    Mina Lamline, Resp’t, v. Houston, West Street and Pavonia Ferry Railroad Company, Appl’t.

      (New York Court of Common Pleas, General Term,

      Filed February 7, 1887.)

    1. Negligence—Street railroad—Duty of driver to look out for passengers.
    In an action to recover damages for injuries inflicted by the starting of a bob-tailed car, while plaintiff was in the ait of boa.ding it. Held, that the driver in looking out for persons desiring to become passengers was bound to exercise that ordinary care which a person ought to observe under the particular circumstances in which he was placed; that if the driver was exercising this care, and did not see the plaintiff, his duty in this regard was performed, and plaintiff could not recover.
    2. Same—Absence of conductor not negligence.
    The absence of a conductor on a one-horse car is not negligence.
    Appeal from a judgment entered upon a verdict in favor of plaintiff'.

      Devlin & Miller, for app’lt; M. S. Isaacs, for fesp’t and Adolph L. Sanger.
   Allen, J.

This is an appeal from a judgment entered upon a verdict. The action was brought to recover damages for injuries alleged to have been sustained by the plaintiff through the negligence of the defendant.

According to the testimony on the part of the plaintiff, she and her daughter, on the 24th day of October, 1884, were waiting at the northwest corner of Third street and Avenue B. for a Houston street car. They hailed a car, and the driver looked at them and stopped the car. When the plaintiff was in the act of boarding it, and had her right hand on the railing of the platform, and one foot upon the step of the platform, the car was suddenly started, and she was thrown down and dragged upon the street, and was injured. The plaintiff testified that the number of the car was 13.

The driver of the defendant’s car, No. 13, on the 24tli day of October, 1884, was called as a witness, and testified that he did not stop the car for the plaintiff, that he never saw her at the time and place at which she claims to have hailed him, and that he knew of no accident having occured at that place on that day. The car was a one-horse car, commonly called a “bob-tail car,” and had no conductor. The jury rendered a verdict for plaintiff for $4,000.

At the conclusion of the charge, the counsel for the defendant requested the judge to charge that if the driver exercised the watchfulness which any discreet and careful man would have exercised under the circumstances, to see or hear persons desirous of becoming passengers, and if then he did not see or hear the hail of the plaintiff, and did not see that plaintiff immediately before or at the time of her attempt to board the car or was on the step, then the defendant is entitled to a verdict. The judge declined to charge as requested, except as he had charged. The judge had charged generally on the question of the defendant’s negligence, and stated the established rule in regard to it.

The negligence charged against the defendant in this case was, that the driver, having seen the hail of the plaintiff, and stopped his car for the purpose of allowing her to get on, suddenly started it while she was in the ad-of boarding the car. If it is true that the driver did see the plaintiff and stop the car for her, and started while she was attempting to get on, the defendant would be chargeable with negligence. It is equally true that if the drives was exercising the care required of him by the law, and did not see the plaintiff, and had no knowledge that she was in the act of boarding the car, tho defendant could not be held liable.

The driver, in looking out for persons desiring to become passengers, was bound to exercise that ordinary care which a person ought to observe under the particular circumstances in which he was placed. Ordinary care is that degree of care which a person of ordinary prudence is presumed to use under particular circumstances to avoid injury to others, and ■ is in proportion to the danger to be avoided. It has the relation to the business in which the party is engaged. If the driver of this car was exercising this care, and did not see the plaintiff, his duty in this regard was performed. Therefore the request to charge presented a sound proposition of law, directed to the circumstances of the case as disclosed by the evidence.

As the instruction asked for was correct in principle, and presented a question of law bearing upon the evidence, the defendant was entitled to have it given to the jury We think the defendant’s exception to the refusal to charp this request was well taken.

The defendant also requested the judge to charge that the absence of a conductor on a one horse car is not negligence. The judge declined so to charge, and stated that the jury were to say, from all the facts in the case, whether a conductor was necessary or not.

It had been shown on the part of the plaintiff that the car in question was a one horse car, and had no conductor. We think it was error to refuse to charge this request. There is no statute requiring a conductor upon a one horse ear. In Brooklyn C. R. R. Co. v. The City of Brooklyn (37 Hun, 413) the court say: “Whether a railroad shall have large or small cars, with or without a conductor, and how often the cars shall run, and when, are subjects left with the companies under their charters, and subject to legislative control.” It could not, therefore, be properly left to a jury to decide whether a conductor was necessary or not. The question to be left to the jury, on the issue of the defendant’s negligence, was whether under the actual circumstances of the case the defendant exercised the care and prudence required of it in what it did and whether its negligence caused the injury. Grippen v. N. Y. Central R. R. Co., 40 N. Y., 41.

These errors lead to a reversal of the judgment and order. A new trial is ordered, costs to abide the event.

Daly and Bookstaver, JJ., concur.


text:
    Joseph L. Spofford, Resp’t, v. David N. Rowan, App’lt.

      (New York Court of Common Pleas, General Term,

      Filed February 7, 1887.)

    Set-off—Of joint debt against a separate debt not allowed.
    Courts of equity, following the law, will not allow a set-off of a joint debt against a separate debt, or conversely of a separate debt against a joint debt. Affirming S. C., 3 N. Y. State Rep., 373.
    Appeal from an order of the general term of the city court, affirming an order and judgment of the trial term.

      E. P. Johnson, for resp’t; D. N. Rowan, for app’lt.
   Allen, J.

We are of the opinion that the counterclaims pleaded are not available to the defendant in this action. The question has been fully and carefully discussed by Chief Justice McAdam, and we think that the judgment ought to be affirmed on his opinion. Reported in 3 N. Y. State Rep., 272.

Larremore, 0. J., and Bookstaver, J., concur.


text:
    Maria Cowen, Adm’rx, Resp’t, v. The Knickerbocker Ice Company, Imp’ld, etc., App’lt.

      (New York Court of Common Pleas, General Term,

      Filed February 7, 1887.)

      1. Negligence—Contributory—What amounts to.
    Where a person is placed by the negligent act of others in such a positian tlmt he is compelled to choose upon the instant in the face of impending peril, the fact that he made a wrong choice does not prove contributory negligence. But if there is time for him, by the exercise of reasonable diligence, to withdraw to a place of safety, and he does not, he is guilty of negligence, and cannot recover.
    2. Same—Evidence evenly balanced.
    Where the testimony in regard to the negligence of the plaintiff is equally balanced, the verdict must he for the defendants.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      Jeroloman & Arrowsmith, for resp’t; Maclay & Forrest, for app’lt.
   Larremore, C. J.

The plaintiff sues to recover damages for the alleged negligence of the defendant in causing the death of her husband. He was engaged in shoveling coal upon a canal boat lying at the pier at the foot of Twenty-first street. Two ice-barges were being towed by the Cheney line and were shoved into the pier. They collided with the canal boat and caused the injury which resulted in Co wen’s death.

A full examination of the case leads to the conviction that a pure question of negligence upon conflicting evidence was presented for the consideration of the jury. The trial judge, in an able and impartial charge, submitted this question, together with that of contributory negligence, to the jury, who rendered a verdict against the appellant.

I find no errors either in the rulings, or the charge. The point raised upon the argument, that the deceased, by the exercise of proper precaution, might have avoided the injury, is not supported by the evidence. Where a person is placed, by the negligent act of others, in such a position that he is compelled to choose, upon the instant, in the face of impending peril, the fact that he has made a wrong choice, does not prove contributory negligence. Voak v. N. C. R. R. Co., 75 N. Y., 320; Twomley v. C. P. N. and E. R. R. R. Co., 69 id., 158; Dyer v. E. R. R. Co., 71 id., 228; Roll v. Northern C. R. Co., 15 Hun, 496; Aff’d Ct. of Appeals, 80 N. Y., 647; Coulter v. A. M. N. Ex. Co., 56 id., 585; Buel v. N. Y. Cen. R. R. Co., 31 id., 314.

The trial judge in his charge squarely presented to the jury the proposition of law upon which the appellant insisted, viz., that if the deceased saw the ice-barges coming against the boat he was on, in time for him, by the exercise of reasonable diligence, to withdraw to a place of safety, and he did not do so, he was guilty of negligence and the plaintiff could not recover.

The judge also charged that if the testimony, in regard to the negligence of the deceased, was -equally balanced, the verdict must be for the defendants.

None of the exceptions at the trial appear to have been well taken. At folios 86 and 87 the answer to the question was not responsive, and was properly stricken out. The answer at folio 92 was negative in its character and could not have affected the result of the trial.

The question at folio 177, “Why were you excited, called for a reason—and operation of the witness’s mind— and not for evidence of any fact.

The exception at folio 262, as has been previously stated, was covered by the judge’s charge, which fully met the law as now established, upon the question of contributory negligence.

I am not prepared to say, after examination of all the testimony, that the damages awarded were excessive; or that any error appears of record for which the verdict of the jury should be disturbed.

The judgment appealed from should be affirmed, with costs.

Daly and Booicstaver, JJ., concur.


author: Per Curiam.

text:
    Western Union Telegraph Company, App’lt, v. Robert Milliken, et al., Resp’ts.

      (New York Court of Common Pleas, General Term,

      Filed February 7, 1887)

    1. Practice—Demurrer.
    A pleading to which a demurrer has been interposed must speak for itself.
    2. Same—Counterclaim—Privity between parties.
    The complaint sets up a running account between the parties. The cause of action set up in the counterclaim , if sustainable at all is for negligence, and as there is nothing in tile ease to show any privity of contract between plaintiff and defendant the demurrer of the plaintiff should have been sustained.
    This is an appeal from a judgment rendered in the district court of the city of Now York for the First judicial district overruling the demurrer interposed by the plaintiff to the counter-claim set upon defendants’ answer and in favor of the plaintiff for the sum of four dollars and eleven cents.
    The action was brought to collect a debt owing by the defendants to- the plaintiff for services in transmitting telegraphic messages. The defendants admit the indebtedness, but counter-claim a debt due them from plaintiff by reason of damages which they have sustained on account of the plaintiff addressing and delivering to them a message containing an order to sell 20,000 barrels of oil, which order was intended for and delivered to plaintiff for other brokers. The defendants were brokers for buying and selling stocks, bonds and oil, and in the carrying on of their business the plaintiff received messages for the defendants ordering them to purchase and sell stocks, oil, etc., and also transmitted to defendants’ customers reports of such purchases and sales, the plaintiff having a special office on the Exchange for that purpose.

      Van Duzer and Taylor and Davicl Milliken, for resp’ts.
    1. The plaintiff company is undertaking the duty of transmitting messages entered impliedly into a contract with the defendants to diligently send their messages to their customers, and impliedly warranted that it had authority to send any message which it should deliver to defendants.
    2. The liability of telegraph companies is regulated by contract. They are bound to transmit messages with care and diligence, and if they fail in this they become liable. Breese v. U. S. Tel. Co., 48 N. Y., 141; Leonard v. N. Y., etc., Tel Co., 41 id., 544; Rittenhouse v. Tel. Co., 44 id. 265; De Rutte v. N. Y. A. & B. Tel. Co., 1 Daly, 547; Shearman & Redfield on Negligence, 558, 560; Aiken v. Tel. Co., 5 S. C., 358; La Grange v. South Western Tel. Co., 25 La. Ann., 383; Western Union Tel. Co. v. Hope, 11 Abb. App., 289; 3 Ann. Law Review., 777.
    3. The receiver as well as the sender of a message is privy to the contract under which the service was performed, and the_ person put to loss, whether sender or receiver, may maintain an action against the company for the recovery of the same. Breese v. W. U. Tel. Co., 48 N. Y., 132; Elwood v. W. U. Tel. Co., 45 id., 556; N. Y. & W. Tel. Co. v. Dryburg, 35 Penn., 298.
    4. An error in transcribing the direction and a consequent misdelivery are prima facie evidence of neglect and want of care in the operator. Baldwin v. The United States Telegraph Company, 45 N. Y., 751.
    5. The delivery was of a message to persons for whom it was not intended. It can be considered only therefore as a direct message and order from the plaintiff to the defendants.
    6. The receiver of a message has a right to assume that the company is the agent of the sender and is clothed with authority, and should there be no such authority, then the company contracts with the receiver.
    7. The counterclaim is connected with the subject of the action, which is the transmission of messages.
    8. No particular form of words is necessary to make a pleading a counterclaim; and if the party had, in any reasonable language intimated that he intended to make a personal claim in his own favor against the plaintiff, it would have been sufficient. Bates v. Rosekrans, 37 N. Y, 409; Equitable Life Association Society v. Cuyler, 75 N. Y. 514.
    9. If the answer advised the plaintiff that a counterclaim was intended to be set up, it would have been sufficient information to him of the nature of the pleading. A counterclaim must be so alleged as to advise the opposite party. Equitable Life Association Society v. Cuyler, 75 N. Y., 514.
    10. The only ground of demurrer urged by plaintiff is that the counterclaim of defendants, sets up a cause of action in tort.

    11. A complaint containing a statement of facts constituting a cause of action on contract sustained by proof of such facts upon the trial, authorizes a recovery, although the complaint is in form for a conversion and the summons in the action is for relief. Conaughty v. Nichols, 42 N. Y., 83.
    12. A variance between an allegation in a pleading and the proof is not material unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits. Section 539, Code Civil Procedure.
    13. The appeal herein should therefore be dismissed with costs.

      Dillon and Swayne, for app’lts.
   Per Curiam.

It is now well settled in practice, that a pleading to which a demurrer has been interposed, must be its own mouth-piece. The complaint in the action sets up a running account between the parties which the dedendants admit to the extent of $4.11, but set up a counterclaim as a defense, to wit. :

That on or about May 16,1884, plaintiff delivered to the defendant, Robert Milliken, a telegraphic message by mistake, which was not intended for him, upon which he acted, and upon which he sustained a loss, the amount of which these defendants seek to recoup against the plaintiff’s claim.

The answer avers that, through inattention, the plaintiff changed and altered said message, and wrongfully and negligently delivered the same, which was not intended for them, to these defendants. This averment in the answer characterizes the nature of the action as one of tort, and not of contract.

There is nothing in the case as presented to show any privity of contract between the plaintiff and the defendants. The cause of action set up in the counter-claim, if it can be sustained at all, must be for negligence, and upon this point this case is distinguishable from the authorities cited in its support.

We thing the demurrer should have been sustained, and. that the order overruling it should be reversed, with costs.


text:
    Fire Department of New York City, Resp’t, v. John Stetson, App'lt.

      (New York Court of Common Pleas, General Term,

      Filed February 7, 1887.)

    1. Theatres and places op amusement—Spectators not allowed to STAND IN PASSAGE WAY—LAWS 1885, CUAP. 456, § 28, LITERALLY CONSTRUED.
    In an action to recover the penalty for allowing persons to stand in the passage way of a theatre, contrary to Laws of 1885, chapter 456, section 28. held, that the provision that inhibits the standing of spectators in the passage way will be literally construed.
    2. Same—Penalty—Wiiat must -re proved in order to collect.
    It is not necessary in order to collect the penalty as provided in said law to prove that the defendant knew that there were persons standing in the passage ways on the nights in question, or that he gave permission to anyone, on those occasions, to occupy a part of a passage way. It is sufficient to prove, even where a guilty knowledge is the gravamen of the offense, that the act complained of was done in pursuance of a general authority given by the defendant to his servant or agents. That authority may lie implied from circumstances.
    3. Same—How guilty knowledge may be disproved.
    It is competent for the defendant to show, if he can, that the wrongful act was done in opposition to his wishes, hut his disavowal of the act is not conclusive; it may be overcome by circumstantial evidence.
    4. Same—Non-resident liable for acts of agents.
    The defendant was liable, notwithstanding he was residing in another state at the time that his agents allowed the acts prohibited by statute.
    5. District court—Appeal from—When allowed to go to court of APPEALS.
    • An appeal to the court of appeals is not allowed by the court of common pleas in actions that originate in a district court, unless a novel question of importance is’presented.
    Motion for a re-argument, or for leave to go to the court of appeals, in an action originating in a district court to recover a penalty of fifty dollars for violation of Laws of 1885, chapter 456, section 28.

      W. L. Findley, for resp’t; A. J. Ditterihoefer, for app’lt.
   Per Curiam.

We do not allow an appeal to the court of appeals in actions that originated in a district court, unless a novel question is presented, that seems to us of sufficient importance to require consideration by the court of last resort. Where the law is well settled, as it is in the case before us, there is no reason for granting permission to a dissatisfied suitor to carry his suit, to the court of appeals.

We are asked to nullify a statue, the meaning of which, is plain, by applying to it rules of construction that are resorted to only where a statute is ambiguous or where a literal construction of its terms would involve an absurdity, or work a glaring injustice. The statute that we are called to consider is not ambiguous, nor will a construction of if that gives effect to its obvious intention do any injustice to any one.

The object that the legislature had in view was a beneficent one; it was to prevent the awful sacrifice of human Ife that is certain to occur if no limit be placed upon the practice of allowing the means of ingress and egress in theatres to be blocked by throngs of people who, when a play is attractive, are admitted by theatrical managers long after every seat is occupied, and when, to use the language of the notices, there is “ Standing Room Only.”

The fire at the Brooklyn Theatre left a profound impression upon the public mind, and the feeling was general that the passage ways for exit should be large enough to give an audience a chance for their lives in case of danger, and that those passage ways should be kept clear, even when a strong pecuniary temptation made the manager of a theatre willing to take the risk of filling them with spectators. It was not left to the manager, whose pecuniary interest might blind his eyes, to determine how the ways of exit should be laid out, but the statute explicitly provides that “In all places of public amusement already erected, the halls, doors, stairways, seats and aisles, should be so arranged to facilitate egress in case of fire or accident, as the superintendent of buildings, with the concurrence of the board of fire commissioners, may deem necessary for the public protection.” It will be observed that the legislature was not content with placing under the the control of the superintendent Of buildings the construction of the means of exit in places of amusement thereafter to be built, but it gave to the superintendent the right to prescribe the arrangement of the avenues of entrance, even in buildings already erected. It is for the superintendent to decide how wide the aisles and stairways shall be, and it was presumed that when the superintendent considered them sufficient, he would not needlessly diminish the seating capacity of the house by making them any wider than is absolutely necessary for the public safety.

Hence it became necessary to provide that these avenues should be kept clear, and, therefore, it was made the law that “all aisles and passageways shall be kept free from eamp-stools, chairs, sofas, stoves and other obstructions; and that no person or persons shall be allowed to stand in occupy any of the aisles or passageways during any performance.”

Notwithstanding the plain and clear language of the act, the counsel for the defendant contends that the manager has a right to place a part of the audience in the aisles and passageways, if the number be not so great as to prevent tree exit in case of danger. It is obviously impossible for any man to say how many people would, in a panic, block up' a narrow passageway. It is not a question as to how long it may take to empty a theatre where everybody is cool and moving leisurely, but as to whether it is safe to allow passageways to be blocked when a crowd of panic-stricken people are making a mad rush for the doors. The legislature has made its meaning perfectly clear, and has said that no person shall be allowed to stand in the passageways, and it is not for any judge to say that although the legislature has forbidden it, the manager is at libeity to allow forty or fifty people to occupy the ways of exit. The counsel for the defendant argues that it is unreasonable to construe the act so as to deprive the manager of the opportunity to sell standing room in the aisles and passageways when he may do so without endangering life or limb. But the answer is a plain one; the intention of the legislature is so obvious that it requires nullification, not construction, to defeat it; furthermore a hecatomb of lives might be lost if the manager should make a slight mistake as to the number that he might pack with safety in an aisle or passageway.

We reject, therefore, any other than the literal construction of the provision that inhibits the standing of spectators in the passageway.

The evidence fully sustains the judgment that was given for the plaintiffs. It was not necessary to prove that the defendant knew that there were persons standing in the passageways on the nights in question, or that he gave permission to anyone on those occasions io occupy a part of a passageway. Even if the statute did not impose a penalty unless the defendant knowingly permitted the avenues for exit to be occupied, it would have been competent to prove that knowledge by circumstantial evidence. The case of the Verona Cheese Co. Murtaugh (50 N. Y., 314), is a precedent useful to c. -* charged with the duty of proving the case for the plaintiff in an action for a penalty. It is sufficient to prove even where a guilty knowledge is the gravamen of the offence that the act complained of was done in pursuance of a general authority given by the defendant to his servant or agents. That authority may be implied from circumstances. If it appear that an act that is for the interest of the defendant, is done by his servants in the performance of their duties as his employees, it will not be assumed, in the absence of evidence, that it was done without authority. It is, however, competent for the defendant to show, if he can, that the wrongful act was done in opposition to his wishes, then I’-' ought not to be held liable. But his draowal of the act is not conclusive. Like any denial of guilt, it may be ■ overcome by circumstantial evidence. .To what weight would a denial by the defendant of responsibility for the' presence of people*in the passageways have been entitled in this case? His men sold tickets of admission that gave the holder no right to a seat, for after every seat was occupied or sold, the sale of tickets must have continued not only once, but on many occasions, a number of people, sometimes as many as sixty, were standing in the passageway in rear of the orchestra circle. One could not get through them without shoving. The ushers saw this. They must have done so, for the defendant’s stage carpenter admits that he saw men standing in the passageways on several occasions. Would anyone believe that the ticket sellers and the ushers had entered into a conspiracy to thwart the defendant’s good intentions? Who got the money for this violation of the law? As was said by Judge W. E. Allen in the case cited “it will not answer to suffer a party to escape the consequences of acts like those complained of, by keeping in the background, and putting forward irresponsible agents, and thus secure the benefit, and escape the perils of the wrong.”

“The presumption of authority from the fact proved is not one of law, and therefore conclusive, but a fact, and, therefore, it is for the jury to determine whether the evidence warrants it.”

Of course, if it should appear that despite the bona fide efforts of the defendant’s servants, there was a knot of two or three persons tarrying for a moment or two in a passageway, no sensible justice would hold that the statute was violated, but upon the facts indisputably proved in this case, the defendant was liable, notwithstanding his residence in Boston. It was perfectly proper for the justice to draw the conclusion that the defendant authorized his servants to allow persons to stand in the passageways. •

In the case of the Verona Co. v. Murtaugh (sup), acts complained of were by the wife, the daughters and a son of the defendant, and there is no evidence directly proving that the defendant himself took any part in the matter, but yet as he derived profit from the fraud that was practiced, and as the members of his family were in his service, it was decided that it was not improper to infer that he was aware of the acts that were done for his benefit, and upon such an inference to hold him liable for the penalty.

In the case of Sturges v. Maitland (Anthon’s Nisi Prius, 208), which was tried before Chancellor Kent, and affirmed by the supreme court, it was held that the defendant might be liable for a penalty, though he was absent in Virginia at the time that his agent’s clerk did the unlawful act; and that even, if an intent to violate the law were wanting, the negligence of the clerk might be so gross that a criminal intent might be imputed to him for which the defendant would be liable to a penalty. In that case it appeared that the defendant, by his agent’s clerk, had loaded some flour aboard one of his vessels, without having it inspected and branded, an act that was punishable by a penalty of five dollars for every barrel so snipped.

In The People v. Hulbut (4 Denio, 133), the prisoner was convicted of selling liquor without a license, though the liquor was sold by his son. The prisoner was connected with the act by proof that he kept the house in which the offense was committed, and that he kept a bar with bottles in it.

In Attorney General v. Siddon (I. C. & J., 220), it appeared that the master was absent, and that some smuggled tobacco was discovered in his cellar. His clerk, for the purpose of protecting the goods from seizure, wrongfully obtained a permit for the tobacco, and thereby did an act for which a penalty was prescribed. The master was held liable for the penalty,_ for the act was for the master’s benefit, and the obtaining of permits was in the course of the clerk’s ordinary duties. The presumption, therefore, was, that the act was authorized, and it was the duty of the master to rebut that presumption.

In Davis v. Bemis (40 N. Y., 453 note), it appeared that the agents of the defendant made and presented to the collector of customs certain false bills of lading, in the interest of the defendant, and so procured clearances of some of the defendant’s vessels. As the act was done for the defendant’s benefit by his employees, who were acting in the line of their ordinary duties, it was held that the defendant, though he took no part in the fraud, was liable for the penalty imposed on him who presents a false bill of lading to a collector.

There can be no doubt, therefore, that the decision of the district court, holding the defendant liable, was fully supported by the authorities and that the judgment was rightfully affirmed.

The motion for reargument, or for leave to go to the court of appeals, is denied, with costs.


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    Charles V. Ware, Resp’t, v. Richard M. Raven and Frederick Meyer, App’lts.

      (New York Court of Common Pleas, General Term,

      Filed February 7, 1887.)

    Trial practice—Questions op pact are for the jury.
    If' the defense pleaded by defendant would be good if proven upon the plaintiff’s denial, it becomes a question of fact for the jury.

      Appeal from a judgment entered on a verdict of a jury, under the direction of the court.

      Hewett & Newell, for resp’t; A. Prentice, for app’lts.
   Bookstaver, J.

The defendants were bankers an

brokers in stock, etc. *'

On the 15th of June, 1881, the plaintiff enclosed a check for $300 in a letter to defendants. In the letter he directed this money to be placed to his credit, as margin, and that they execute the orders of G. W. Warren for his account, who was, by the letter, authorized to act for the plaintiff as far as his account would warrant.

On the order of Warren, before the 5th of October, 1881, defendants had purchased for the account and were then carrying 100 shares of Toledo, Deleware, Fontaine and Burlington stock; and also 100 shares of Central Arizona stock.

On the 5th of October, 1881, Warren instructed defendants to sell, on plaintiff’s accounts, 100 shares of Denver and Rio Grand stock at eighty-two.

This was what is commonly known as a short sale. On the 8th of October, 1881, this stock had advanced to eighty-three and one half, whereupon the defendants, as plaintiff claims, without the order or consent of himself or his agent, purchased 100 shares of Denver stock, at the price last named, to cover such sale.

Plaintiff also claims that this was done without any proper notice or demand for more margin.

From the case it appears that two notices for more margin were made on the plaintiff on the day the purchase was made.

Defendants gave testimony tending to show that, at the time Mr. "Warren gave dbJons to sell the Denver stock short, the margin to plaintiff's credit did not exceed $120, and that their agent informed him that there was not enough margin to "warrant the defendants in so doing, to which Warren replied: “I wish you would do it and give me a show; I have been losing money, and you know I will not let it go more than half a cent against me,” and he also said he would stay in the office and look out for it, and, in casé it went against him, he would give defendant’s agent an order at once to cover it, so that little money could be lost on the transaction; and that this was the . understanding on which the stock was sold, and, but for this, they would not have had the transaction.

This was denied entirely by the plaintiff and his witnesses.

We think that, if the stock was sold on his understanding, and not as plaintiff claims, it would have been a good answer to the action, and that the question was one of fact, which should have been submitted to the jury.' Therefore the judgment and order should be reversed and a new trial ordered with costs to abide the event.

Larremore, C. J., and Allen, J., concur.


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    Ephraim Howe, Resp’t, v. James P. Welch, App’lt.

      (New York Court of Common Pleas, General Term,

      Filed February 7, 1887.)

    Practice—Election of defenses—Statute of limitations.
    The defendant having elected to re.y solely upon one defence will not, when beaten on this ground, be allowed to change his position and avail himself of another ground which he expressly waived.
    Appeal from a judgment of the city court rendered at general term reversing a judgment entered upon the direction of the trial judge, dismissing the plaintiff’s complaint with costs, and directing judgment in favor of the defendant.

      Stickney & Shepard, for resp’t; Abbott Bros., for app’lt.
   Per Curiam.

On the trial of the action in the court below, defendant by his counsel stated that he would rely solely on the statute of limitations of the state of Iowa, for his defense.

The action was tried and judgment rendered in reliance on this statement. When beaten on this ground, we do not think the defendant should be allowed to change his position and seek to avail himself of another ground which might have been taken on the trial, but which he expressly waived in the manner above stated and that he is now too late to ask a construction of section 390 of the Code.

The motion to go to the court of appeals is therefore denied, without costs.


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    George W. Winant and another, Resp’ts, v. Nicholas E. Hines, App’lt.

      (New York Common Pleas, General Term,

      Filed March 7, 1887.)

    1. Landlord and tenant—Surrender of lease by operation of law.
    There can be no such thing as a surrender of a lease by operation of law except where the law declared that the happening of a certain event of itself puis an end to the lease, even in spite of the wishes and intentions of the par des.
    2. Same—Surrender will not be presumed—Re-letting—Effect of, upon liability of outgoing tenant—Estoppel.
    If it be made to appear that there was no agreement for the release of the outgoing tenant, the re-letting does not put an end to the tenant’s liability upon his lease, and i the tenant is unable to show that by agreement the lease was terminated, a surrender will not be presumed from the fact that the landlord has re-let the premises. Nor does such re-letting work an estoppel.
    3. Landlord to render loss as light as possible.
    , As it is the duty of the landlord to render his loss from the tenant’s breach of contract as light as possible; the landlord may re-let the premises wrongfully abandoned and credit upon the rent the tenant stipulated to pay, whatever he receives from the new tenant.
    It appears from the evidence that the plaintiffs, by verbal agreement, leased to the defendant certain premises for a term of one year, from May 1, 1884, at a monthly rent, of $52.50. The last of September, 1884, the defendant vacated the premises, and several days after his clerk delivered the keys to the plaintiff’s clerk. The last rent paid by defendant was for the month of September.
    The plaintiffs succeeded in re-letting the premises to a new tenant for the remainder of the term, from November 15 at the monthly rent of forty dollars, and brought this action in the district court of the city of New York to recover the balance due from defendant for rent up to May 1, 1885, after deducting the amount received from the new tenant. Judgment was given for the amount claimed, and defendants appealed to this court.

      George W. Gibbons,, for resp’t; Clark Brooke, for app’lt.
   Per Curiam.

If Oastler v. Henderson, decided by the English court of appeal, 2 Q. B., division 575 (21 Moak’s Eng. Rep., 277), be a precedent that we ought to follow, it is our duty to reduce the judgment, but not reverse it. In that case the. tenant, left the demised premises in the'early autumn of 1868, and sent the keys in December of that year to the landlord, who at once put up a bill, and employed an agent to re-let the premises, though a new*- tenant was not secured till March, 1872, and it was held that the landlord was entitled to recover from the tenant the rent that accrued between the date of the abandonment of the premises and the date of the re-letting to the new* tenant. Lord Justices Bramwell and Brett said that they were prepared to overrule Phene v. Popplewell, (12 C. B. N. S., 334), if that case were to be construed as deciding that the surrender of the lease must, as matter of law*, relate to the date at which the landlord received the keys. Applying the'decision in Oastler v. Henderson to the case before us, it would be our duty to modify the judgment appealed from, by reducing it to the amount that, would pay the rent for the six weeks that intervened between the quitting of the premises by the defendant and the re-letting of them to a new tenant, and to affirm the judgment as so modified. The-costs of the court, below would of course be retained by the respondent. But. we prefer a.different course, and unless the respondent should consent to the modification of the judgment in the manner that- we have indicated, we shall affirm the. judgment as. it was rendered, and give to the appellant leave to carry the case to the court of appeals. We shall grant that leave, because there is no reported case that is authority for the decision that we intend to make.

In England it appears to be settled by a number of decisions that “ by letting the premises to a new tenant the landlord does an act so inconsistent with the continuance of the tenant’s term that he is estopped from denying that it is at an end.” Observations of Cockburn, C. J., in Oastler v. Henderson.

It is true that Baron Parke, in Lyon v. Reed (13 M. & W., 284), clearly showed that there v^as no foundation in reason for holding that the letting to a new tenant worked .an estoppel in favor of the outgoing tenant, and that it was a palpable error to say that the re-letting to a new tenant effected a surrender by operation of law. Lord Chancellor Suydex, in Creagh v. Blood (1 Jones & La Touche, 133), expressed the same opinion.

There can be no such thing as a surrender by operation of law, except where the law declared that the happening of a certain event of itself puts an end to the lease, even in spite of the wishes and intentions of the parties.

There are cases in which the law attached certain consequences to certain acts irrespective of the intentions of the parties. Where a tenant accepts a lease, the law will not permit him to dispute his landlord’s title. Where a tenant, during the life of his lease, accepts a new lease, the law will not permit him to deny that the first lease had previously been surrendered. Where a bailee receives goods on deposit, the law will not permit him to deny the title of his bailor.

_ In these cases the law conclusively presumes that the rights of the parties aré such as both parties recognize as existing at the time they entered into relations with each •other. It will be seen that there is in every one of these cases the basis of an equitable estoppel.

“These conclusive presumptions were adopted by common consent, from motives of public policy, for the sake of greater certainty and the promotion of peace and quiet in the community; and, therefore, it is, that all corroborating evidence is dispensed with and all opposing evidence is forbidden.” G-reenleaf on Evidence, section 15.

Where a tenant has abandoned the premises, and notified his landlord that he has done so, the re-letting does not evict him nor prejudice him in any way. If he leaves the premises without the assent of his landlord, he cannot say that he has been induced to alter his situation for the worse in consequence of his landlord’s acts or assurances. It cannot be argued that the tenant abandoned the premises because he expected,- or had a right,to expect, that the landlord would keep them unoccupied, and, therefore, there is no ground ior saying that when the landlord re-lets the re-letting works an estoppel.

There is no basis for an equitable estoppel, because the tenant is not induced by the landlord to change his situation, he changes of his own motion, to suit himself. When he notifies the landlord that he has quit the premises for good, it is idle to say that he is excluded from them by the act of the landlord in re-letting them.

Although this reasoning is clear, yet the English courts, have felt themselves compelled to follow the case of Thomas v. Cook (2 B. & Aid., 119), which held that the re-letting of the premises to a third party absolutely estopped the landlord from claiming rent subsequently accruing from the deserting tenant. The discussions in the English courts show very clearly that the judges were unable to explain exactly in what way an estoppel was worked, but after a lame discussion they have generally contented themselves with the assertion that somehow or other the re-letting effected a surrender by operation of law.

Indeed, the queen’s bench has gone to a point to which no American court can follow, for in Nickells v. Atherstone (10 Q. B., 944) it was decided that the re-letting worked a surrender of the lease by operation of law, notwithstanding that the tenant, after quitting the premises, sent the landlord a letter requesting him to re-let them.

Wharton, in his Treatise on the Law of Evidence, section 860, says: That these English decisions make a very important extension of the construction of the words “operation of law.”

Our American courts have held that where the landlord re-let with the consent of the outgoing tenant, the re-letting could not be regarded as working a surrender by operation of law. They have also held that where the landlord notified the outgoing tenant that he would not release him, but would re-let the premises at his risk and on his account, the re-letting did not effect a surrender by operation of law.

These decisions reject in toto the idea that the re-letting terminates the lease by judgment of the law, without regard to the intentions of the parties, and make the.question of surrender a question of fact, and not a.question of law. They make the surrender a question of intent. The inquiry is, did the tenant intend to surrender the lease, and did the landlord intend to accept a surrender?

The re-letting of the premises by the landlord raises a. presumption that he intended to terminate the lease, and to discharge the tenant from further liability, but that presumption, like any other presumption of fact, may be overthrown' by evidence. Hence if it be madé to appear that, there was no agreement expressed or implied for the ralease of the outgoing tenant, it is the law of the state of Hew York that the re-letting does not put an end to that tenants’ liability upon his lease.

But there is reason for our going still further than any court has yet gone, and for our holding that in Hew York, if the tenant is unable to show that by agreement with the landlord the lease was terminated, a surrender will not be presumed from the fact that the landlord has re-let the demised premises. Though in other jurisdictions the doctrine is not unknown, yet it is in Hew York that the greatest effect is given to the rule that a party injured by another’s breach of contract must .make reasonable efforts to render the injury as light as possible.

We think that that rule is applicable to a breach of the contract of hiring and letting. It has been said that a, landlord cannot have two different tenants of the same premises at one time. As well might it be said that "& servant wrongfully discharged could not have two different masters at one time; and yet no one ever suggested that the servant could not recover damages against the master who wrongfully discharged him, though before the term, of the original employment had expired he sought and. obtained a situation under a new master.

We think that upon that ground in Hew York it is the duty of the landlord to render his loss from the tenant* breach of contract as light as possible; the landlord may-re-let the premises that his tenant has wrongfully abandoned^ and credit upon the rent that the tenant has stipulated is pay whatever he receives from the new tenant. All difficulty on the subject is removed if the demand of ths landlord is regarded as a claim for damages for breach-sf the contract of hiring. -

Of course we do not mean that the parties may not, by consent, cancel the lease. Where the lease is terminates, by agreement the tenant is no longer liable.

The judgment appealed from will be affirmed unless fes respondent elects that it shall be modified in conformity with the suggestions that we have made.


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    Martin Hackett, Resp’t, v. James Stanley, Impl’d, etc., App’lt.

      (New York Common Pleas, General Term,

      Filed February 7, 1887.)
    I. Reargument—When ordered.
    The court may order a reargument of an appeal on its own motion.
    2. Same—Motion for leave to appeal to court of appeals.
    Where on a motion for leave to appeal to the court of appeals, thsjQ seems to be doubt whether certain later decisions than the one reli d upon bv the court in its former decision had been applied in the onstruction of the agreement in question, a reargument isaS ordered, although the party-moving for leave to appeal to court of appeals had not applied for it.
    Motion.for leave to appeal to court of appeals.

      Thomas C. Ennever, tor resp’t; Alexander & Green, or app’lt.
   Allen, J.

The case of Leggett v. Hyde (58 N. Y., 272) cited by the learned judge in Winston v. Gorham & Stanley as controlling appears to be distinguised in all the subsequent cases in the court of appeals, in which agreements similar in character to the one in this case, have been construed.

As there seems to be some doubt whether these later decisions, viz: Richardson v. Hughitt (76 N. Y., 55); Curry v. Fowler (87 id., 33); Burnett v. Snyder (76 id., 344); Eager v. Crawford (76 id., 97); Cassidy v. Hall, (97 id., 159), have been applied in the construction of the agreement of January 23, 1885,1 think a re-argument should be ordered, although the defendant has not applied for it. The court may however,, on its own motion, order a reargument of an appeal.

The application for leave to go to the court of appeals is denied, and a. reargument at the March., general term is ordered.

Bookstaver, J., concurs.