text:
    WILLIAM H. VAN OSTRAN, by Guardian, Plaintiff, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Defendant.

      Negligence — duty of a railn'oad company to provide ways for its passengers to safely leone its trains — negligence of a passenger not contributing to the inju/ry does not bar cm action by him.

    The defendant’s depot at Auburn is on the southerly side of its track, and extends from State street on the west to Ohappell street on the east, a distance-of about 298 feet. At about 11 a. m. on November eleventh the plaintiff, who was about sixteen years old, arrived at Auburn from the west in one of the defendant's trains and alighted from the north side of the rear platform of the last car. The train consisted of a baggage car, a mail car and three or four passenger cars, and the rear of the rear car stood near the center of State street. There were no platforms or conveniences for alighting at this place on either side of the car. On the north side was a side track, upon which, to the east of State street, stood an engine and train of cars which were usually started to go westward upon the arrival of the train upon which the plaintiff came, without waiting for the passengers thereof to alight. The plaintiff had never been at the place before, and he testified that just as he left the car by the north side a passenger came upon the platform from that side. The plaintiff was struck by the engine moving westward upon the side track and injured. He might have seen the engine by looking to the east on alighting.

      Meld, that a verdict in his favor should not be set aside.
    That the fact that at the time he left the train it was still moving very slowly, and did not stop until just after he left it, would not prevent him from recovering damages for his injury, provided that the jury should find that his so doing was not the cause of, and did not contribute to his injury.
    Motion by the defendant for a new trial on exceptions taken at Cayuga Circuit, and ordered to be heard in the first instance at the General Term; also from an order denying a motion for a new trial made upon che ground of newly discovered evidence.

      W. H. Adams, for the defendant.

      John D. Teller, for the plaintiff.
   Bradley, J.:

Action for personal injuries suffered by the plaintiff which he alleges were occasioned by the negligence of the defendant. On the 11th day of November, 1882, the plaintiff was a passenger on the defendants train of cars from Canandaigua to Auburn, which arrived at the latter place about eleven o’clock a. m. The plaintiff then went out of the car and got off the north side and was proceeding to' walk away, when he was struck by an engine, knocked down and his foot crushed so as to require amputation. He recovered a verdict for $10,500.

The contention on the part of the defendant is: 1. That the injury was without negligence of the defendant; and 2. That the negligence of the plaintiff, caused or contributed to produce it. The plaintiff was then sixteen year's of age, had never before been there, and one object of his visit on this occasion was to see the State prison. He was in the rear car of the train consisting of three or four passenger cars, one mail car and a baggage car, and exclusive of the engine and tender was from 280 to 340 feet in length. The line of the railroad at Auburn was easterly and westerly, and the depot on the southerly side extending from State street on the west to Chappell street on the east. The distance between the centers of those streets was 298 feet. When the trains stopped the rear end of the rear car was near the center of State street.

This was a single track road, but on the north side of that occupied by this train was a side track (entering the main track west of State street), on which stood another train headed westerly (the engine of which was east of the rear end of the train in which the plaintiff was). And when the plaintiff, having got off the train, had gone a short distance in walking away, the engine of the train on the side track, moving westerly, struck him and caused the injury. There was no platform or anything in the street when the plaintiff got off the train, to indicate that there was any preference of the side he should alight from the car. Both sides of the platform of the car were open and steps leading from them alike. He saw the State prison to the north, and got off and started on his way toward that. It was customary for thqpe trains to meet there, and for the one on the side track to move out westerly on the arrival of this train from' the west, without waiting for passengers to alight from the latter, because they usually went off on the southerly side of it.

The fault of the defendant in this case was that it furnished nq guide, extending to the rear end of the train, to the passenger, that he should depart south from ’it and gave him no information to that effect, and exposed him to danger from, and by moving, the other train before he had reasonable time to get over the side track. It was the duty of the defendant in some manner to furnish facilities of egress of passengers from its trains at stations with safety, and if their protection requires them to leave on one side only, to fairly so indicate in such manner as to enable them by the exercise of reasonable care to make no mistake in that respect.

The assumption on the part of the defendant that no passenger would go off the steps on the north side of the car, and therefore that it could simultaneously with the arrival of the train 'going east at the station, move its train west on the adjacent north track, was in this instance a want of care which permitted the jury to find that the defendant was not free from negligence. ' (Gonzales v. N. Y. and H. R. R. R. Co., 39 How., 407; Terry v. Jewett, 17 Hun, 395 ; affirmed, 78 N. Y., 338; Brassell v. N. Y. C. and H. R. R. R. Co., 84 N. Y., 241.) It. is said, on the part of the defendant, that'the location of its depot at Auburn and its facilities were fixed and so limited by statute that it was not permitted to do more than it did in furnishing means of departure of passengers from trains there, and therefore the defendant is excused and relieved from the charge of negligence in not having more extended facilities for that purpose, and reference is made to Laws •of 1841 (chap. 184, § 2); Laws of 1850 (chap. 239), and Laws of 1853 (chap. 76). Without any special consideration of those statutes it is sufficient to say that the attention of the trial court was not called to them nor was any question specifically raised in that respect on the trial. And on this review exceptions only are considered. And it may be added that if restriction denies to the defendant the right to afford suitable means by way of structures to guide its passengers from its trains in that city, greater precaution is necessarily required of it to guard them against danger to which they may be exposed, in consequence. ,

The more serious question is whether the plaintiff was free from contributory negligence. ' It does not appear that he took any means to ascertain from which side he should leave the car, other than to see that there were steps leading from the north side, and that, as was apparent, the place to get off was in the middle of the street, and no choice was necessarily presented other than the fact that there was a railroad track on the north side, bnt that gave no apparent obstruction. There were walks to be seen north of the track leading across and from State street. lie could by looking easterly as he left the car have seen the approaching train on the side track. But seeing nothing to ■deter him from getting off that side he had the right to assume that he would be exposed by the defendant to ho danger while departing from the train, and his failure to turn and look was not necessarily negligence on his part. This question is one which has had much consideration by the courts. And after some diversity of opinion in Gonzales v. New York and Harlem Railroad Company it seems to have been settled in this State that in view of the invitation deemed given by a railroad company to passengers to take and depart from trains at stations, they may rely upon the care of the company to protect them while doing so from danger of other passing trains in so far as not to require of them the same degree of active caution and diligence as would be imposed upon them when crossing the tracks on other occassions. (Gonzales v. N. Y. and H. R. R. Co., 39 How., 407; Dickens v. N. Y. C. R. R. Co., 1 Keyes, 23 ; S. C., 1 Abb. Ct. App. Dec. 504; Green v. Erie Ry. Co., 11 Hun, 333; Terry v. Jewett, 78 id., 395; affirmed, 78 N. Y., 338; Brassell v. N. Y. C. and H. R. R. R. Co., 84 id., 241; Armstrong v. N. Y. C. and H. R. R. R. Co., 66 Barb., 437.) And whether they could or ought to have observed and escaped the danger under the circumstances, in case of injury is for the jury. And that rule applies in cases where the party sought to be charged as for negligence owes a duty to one injured under circumstances which permit the latter to assume that such duty has been or will be performed so as to expose him to no danger.

In such cases the question of contributory negligence is usually one of fact. (Weston v. N. Y. and E. R. R. Co., 73 N. Y., 595 ; Dobiecki v. Sharp, 88 id., 203; Hoffman v. N. Y. C. and H. R. R. R. Co., 13 Hun, 589; affirmed, 75 N. Y., 605; Weed v. Ballston, 76 id., 329.) But it applies with additional force when, as in the cáse at bar, it involved an element in the nature of invitation to the person injured whereby a sort of privity relation is produced which may characterize the duty as an undertaking.

It is contended that the exercise of care required of the plaintiff, would have advised him that the south side was that of egress from the train, and that as matter of law he was chargeable with negligence for not ascertaining that fact by the surrounding condition and circumstances. While it is true that passengers must assume some responsibilities and apply ordinary intelligence and understanding to their action in leaving the train on which they are passengers, they may be supposed to act on such information as the facilities furnished by the company for their guide on such occasions-may give. They are required to act suddenly on the appearances which are afforded. If there is a platform provided to step on to within their view, they are to understand its purpose. If one side of 'the platform of the car is closed by a gate and the other not, they are advised that the latter is the one of egress, but when the steps on either side take the passengers into the center of a street, with no obstruction either way of departure, the stranger has only his convenience to direct him. The fact that hackmen were on the south side of the road ready to take passengers who desired to ride, would not necessarily furnish the plaintiff, if he had seen them, 'with information that he should get off that side. He wantéd no hack. Nt>r was he required to delay getting off until others did to follow them. There is evidence tending to prove that he was one of the first out and off the ear, and he says as he went down the steps he met a person coming up them on to the car.

In Mitchell v. Chicago and Grand Trunk Railway Company (12 Am. and Eng. R. R. Cases, 163) the train on which the plaintiff was a passenger stopped, as was usual, at a crossing just before reaching the station (the name of which having heen called out), the plaintiff left her seat, went out, and as she was getting off, the train started and she fell and was injured. There was nothing at that spot to indícate a landing place, and the statute, as well as usage, required trains to come to a stop there.

The Michigan court held that negligence cannot be presumed where nothing is done out of the usual course of business, unless Jhat course is improper / that the starting of the train after such stoppage was contemplated by the law, and that passengers must take the responsibility of informing themselves concerning the every day incidents of railway traveling.” That case and Michigan Central Railroad Company v. Coleman (28 Mich., 440), and Pennsylvania Railroad Company v. Zebe (33 Penn. St., 318; Id., 37 id., 420), are distinguishable from the one at bar, although they may not be entirely in harmony with some cases in this State. And the same may be said of Bancroft v. B. and W. Railroad Company (97 Mass., 275). There the plaintiffs intestate came into a station of defendant’s double track railroad in a train and was landed on the side of the track required of trains going in that direction, and after the train left he started to go across the tracks at an unusual place, although facilities were furnished by the company for persons to cross, and before he reached the'jplatform he was struck by a train going the opposite direction on the other track and killed. It appeared that the habit and place of crossing were known to him. The court held that the defendant, having provided a convenient and accessible place of egress from the platform on which he stepped upon leaving the train, was not liable, and that when a person unnecessarily goes upon a track, he voluntarily incurs the risk of consequences, etc.

In Wheelwright v. Boston and Albany Railroad Company (135 Mass., 225), the plaintiff resided near and north of the defendant’s road, which was a double track with landing platforms on either side, that for the east bound trains was op the south side, and she to take such train, about the time it came in, proceeded to cross over the tracks from the north to the south side and was struck by a train going west. She did not go at the crossing provided by planking; but people frequently, without objection, had been in the habit of so crossing. The court held that she was attempting to cross at- a place not designed or adapted for crossing; at which the defendant held out no invitation or inducement for her to cross,” and that she could not recover. That case is also distinguishable from this one in respect to the question under consideration and apparently so. There may seemingly be some difference in the views of the courts in the different States in respect to the measure and application of duty on the part of railroad companies required to protect persons' proceeding to take and depart from trains as passengers, but that the relation of passenger is assumed when he gets his ticket and is properly proceeding to take the train, and does not terminate when he leaves the car, but continues until he has reasonable opportunity to leave the train and roadway of the company after the train reaches the station to which he is entitled to be carried, is a generally adopted proposition. ( Warren v. Fitchburg R. R. Co., 8 Allen, 227.)

The case of Siner v. Great Western Railway Company (L. R., 3 Exch., 150; S. C.,4id., 117) has not necessarily any application. There the passenger in alighting from a car at a place beyond the landing platform received an injury, and it was held that it was chargeable to the negligence of the plaintiff. It was daylight, and if it was a safe place to get off the injury was needless, and if she could not do so with safety it was apparent to her, and she was in fault in making the attempt to do so.

There is evidence to the effect that the bell of the engine on the north track was, and was not, sounded before the plaintiff was struck. The jury were authorized to find that it was not. That fact has no importance except as relates to the question of notice to the plaintiff of its approach and as bearing on the charge of his negligence. There is evidence tending to prove that the train which caused the injury moved quietly and at a low rate of speed when it approached the plaintiff. And the jury were authorized to find that he did not hear it. The question of. the liability of the defendant on the whole evidence was one of fact for the jury. The defendant’s motion for nonsuit was properly denied. The defendant’s exception to the refusal of the court to charge that under the circumstances there was no assurance extended by the defendant to the plaintiff that he might alight on the north side of the train, etc., was not well taken and requires no further consideration. The jury in view of all the circumstances were enabled to conclude that the plaintiff was permitted to understand that his departure at and from the north side of the train in the place and manner he did was proper and safe, and that the defendant would do nothing to place him in danger while so doing. The court charged the jury that the plaintiff “ unquestionably had the right to choose which side of the platform he should descend from. * * * The same opportunity, the same facilities, the same invitation was extended to him to alight on the north side as was extended to him to alight on the south side. It was not negligence on his part to alight on the north side of that train, other things being equal. f * * I submit to you whether he was guilty of negligence in leaving on that side in view of the fact that there was a railroad track on that side.”

The defendant’s counsel excepted to the charge that the plaintiff had the right to choose for himself which side of the car he would alight from.” This exception as applied to the facts in this case was not well taken. The court described to the jury the situation as established by the evidence, State street, and the location in it of the rear end of the car from which the plaintiff alighted. It appears that there was nothing there to indicate a preference, or which indicated facilities of one side over the other for that purpose; either took him into the center of the street. The railroad track on the north side crossing the street was so guarded as not to interrupt passage over the street. And so far as it may have afforded any hesitation or notice, and had any bearing on the question of negligence of the plaintiff, the question was submitted to the jury for their consideration. And there seems to be nothing else to justify a conclusion of negligence on his part, involved in his selection of the north side as that to alight from the car. The arrival of the train at the place of the plaintiff’s destination is announced, the train stops, he is required to leave it, the platform of the car is in the center of a public street in the midst of a city, in looking either to the north or to the south he sees the extending and uninterrupted street, his choice aided by no information or facilities other than that situation, which apparently is adapted to the convenience' of passengers to depart either way, the railroad track on the north, and nothing else distinguishes for such purpose the appearance of the street on that from the other side. The jury have said that it was not such notice to him as to render the plaintiff guilty of negligence in alighting on that side. And it clearly was not negligence as matter of law.

There was evidence tending to prove that the train had come to a full stop before the plaintiff got off, and some to the effect that he alighted when it was in motion. The court charged the jury in that respect, that whether he did or not, does not necessarily determine the question of his right to recover if you find the defendant was negligent. Even though he stepped off the train while it was in motion, that need not necessarily constitute negligence on his part which would preclude his recovering, unless that stepping off while the train was in motion was the cause of or contributed to his injury. It is negligence for a passenger to step off from a train while it is in motion, but it is only such negligeñce ■as contributes to the injury that absolves the defendant from responsibility. If. he was likely to be injured by stepping off after it stopped, that act of his did not contribute to his injury. Unless his staying in the car until it came to a stand would have saved him from accident and injury, his stepping off while the car was in motion can have no importance in the case. * * * If you find, that he did step off while the cars were in motion, and that stepping off contributed to the injury, that becomes a most important and probably the decisive question in the case.”

The exception taken by the defendant’s counsel was “to the charge upon the subject of the negligence of the plaintiff in alighting from the car while it was in motion.” It may be questionable whether this exception was not too broad and not sufficiently specific to raise the question designed by the counsel. (Oldfield v. N. Y. and H. R. R. Co., 14 N. Y., 310, 314; Walsh v. Kelly, 40 id., 556; Ayrault v. Pacific Bank, 47 id., 570, 576; McGinley v. U. S. Life Ins. Co., 77 id., 495.) 'The last part of the charge upon ■that subject the defendant’s counsel would not deem objectionable. The proposition which might have been presented as the result of the plaintiff’s alighting from the train while in motion, related to the effect of it upon his relation as a passenger and the diligence in consequence required of him after he left the car. There is no invitation or permission implied on the part of a railroad company to a passenger to leave a train while in motion, nor .is it required to provide any means of protecting him from the consequences of doing so. When he does that voluntarily he ceases to be a passenger and cannot assume that his safety will be guarded. by the company in so far as to enable him to neglect to use active means of care and precaution. (Commonwealth v. Boston and Maine R. R. Co., 129 Mass., 500.) When he left this train and when injured the plaintiff was in a public highway, where he had the right to be, but if he left the train while in motion his relation to the company was no different than that of any other person in the street crossing the track. That question is not presented by the charge of the court;. nor is it spe cifically raised by the exception to the charge as made, or .by any exception to refusal to charge. The right to recover was not necessarily defeated by any negligence of the plaintiff in alighting from the train while in motion, but if his negligence caused or contributed to the injury it was in the failure to see- and escape the approaching train after he alighted. The act of getting off a train when in motion may be negligence, effectual to deny a recovery for an injury occasioned by it, but it is such only so far as applicable to the result or consequence of the act. The negligence of a plaintiff which will defeat a recovery by him mu-st contribute proximately to the injury; and in this respect the rule is the same as that applicable to the negligence required to charge a defendant. (Cooley on Torts, 679; Trow v. Vermont C. R. R. Co., 24 Vt., 487; 58 Am. Dec., 191; Lane v. Atlantic Works, 111 Mass, 136-139; Hill v. Winsor, 118 id., 251; Crain v. Petrie, 6 Hill, 522; Hoffnagle v. N. Y. C. and H. R. R. R. Co., 55 N. Y., 608; Culhane v. Same, 60 id., 133; Lowery v. W. U. T. Co., Id., 198.) There must be such connection between the act charged as negligence and the injury that it may be deemed the cause, or contribute to the result or injury, so that the latter may be treated as the natural and probable consequence of the negligent act. They must constitute in some degree cause and effect. When the plaintiff got from the train he landed in the street; that caused no injury. It afterwards came and was caused by his going upon and proceeding to cross the railroad track, and by that alone. It does not distinctly appear how much time was occupied in reaching the place of. injury, nor how far he went to receive it. The most that can be charged against him is that he had severed his relation as passenger of the defendant, and was voluntarily going over the railroad at a street crossing in which both parties had an easement, and nothing more. A different question might be presented if the injury had been sustained on premises exclusively those of the defendant. It could not be held as matter of law that the injury was the proximate, natural or probable result of the plaintiff’s departure (if so) from the train while in motion; and that question was not taken from the jury.

There was no charge respecting the effect upon his relation' as passenger if he left the train while in motion, nor was the court requested to charge in that respect, and the charge as made was not inconsistent with the law applicable in such case. Nor can it be said as matter of law that if the plaintiff had remained on the train until it stopped that he would have escaped the injury, so as to make his early departure from it a reason for the accident, without reference to the question of its cause (which is the only legitimate inquiry). It is quite evident that the movement (if any) of the train after the plaintiff alighted was slow, momentary, and for a very short distance only, as several witnesses positively testified that it had come to a full stop before he went off, and a less number testified that it was then in motion; and all of them were in advantageous positions for observation.

In Morrison v. Erie Railway Company (56 N. Y., 302); Gavett v. M. and L. Railroad Company (16 Gray, 501); Jewett v. Chicago and St. Paul Railroad Company (6 Am. and Eng. R. R. Cases, 379), cited by the defendant’s counsel, the injuries were occasioned by alighting from trains while in motion. But it has been held that such rule as matter of law is not applicable to that result under all circumstances. (Eppendorf v. R., C. and N. R. R. Co., 69 N. Y., 195; Filer v. N. Y. C. R. R. Co., 49 id., 47; Terry v. Jewett, 17 Hun, 400; affirmed, 78 N. Y., 338; Armstrong v. N. Y. C. and H. R. R. R. Co., 66 Barb., 438, 442; affirmed, 64 N. Y., 635.) But in this case the question was for the jury to say whether any negligence on the part of the plaintiff contributed to, or to any extent constituted, the cause of the injury complained of, and it was fairly submitted to them.

The question whether the verdict was excessive in amount is not here for consideration. None of the exceptions seem to be well taken. . The defendant’s motion for a ne"w trial on the ground of newly discovered evidence was properly denied by the Special Term. The evidence proposed to be given by witnesses was cumulative merely, and the fact that the location of the depot of the railroad of the A. and R. Railroad Company (which is part of the defendant’s road) was restricted by Laws 1841 (chap. 184), must be presumed to have béen known to the''defendant; and although it is possible that the fact if presented may have caused omission or modification of some expressions in the charge of the court, it does not seem to have an importance in this case to justify the granting of a new trial. • The order of the Special Term is therefore affirmed, and the motion for new trial should be denied and judgment ordered for the plaintiff on the verdict.

Barker and Haight, JJ\, concurred.

Motion for a ■ new trial denied and judgment ordered for the plaintiff on the verdict.


source: Caselaw Access Project

author: Bradley, J.:

license: Public Domain

text:
    MARGARET BARRY, Plaintiff, v. THE PRESCOTT INSURANCE COMPANY, of Boston, Massachusetts, Defendant.

      Policy of fire insurance — when premises become “unoccupied.”

    In October, 1880, the plaintiff moved out of a house owned'by her into another near by and rented'tbe first house to a tenant for a term ending April 1, 1881. The tenant left the premises before the end of his term. In the early part of March the plaintiff procured the key of the house from the tenant, and commenced to plaster and whitewash it and to move her furniture into it with a view of occupying it. On April 8, 1881, the house was burned. Three days prior to' that time all the plaintiff’s furniture had been moved into the house, but no person was living there when it took fire. The defendant had, in May, 1879, issued a policy df insurance against fire for three years upon the house, which provided that if the premises should “become vacant or unoccupied, and so remain with the knowledge of the assured without notice to and consent of this company in writing, * * * this policy shall be void. ”

      Held, that the house had become unoccupied within the meaning of this term in the condition of the policy, and that no recovery could be had thereon.
    Motion by the plaintiff for new trial on exceptions taken at the Ontario Circuit, and ordered to be heard at the General Term in first instance.

      John Gillette, Jr., for the plaintiff.

      A. U. Sawyer, for the defendant.
   Bradley, J.:

On the 24th day of May, 1879, the defendant insured the plaintiff against loss or damage by fire, $400 on a dwelling-house occupied by her .and a tenant, and $100 on furniture, etc., for the term of three years. The policy contained a provision that if the premises should “become vacant or unoccupiéd and so remain with the knowledge of the assured without notice to and consent of this company in writing * * * ' this policy shall be void.” The building and contents were destroyed by fire on the 8th day of April, 1881. The trial court held that there was a breach of the condition, in that the premises were unoccupied, etc., at the time of the fire, and directed a verdict for the defendant. The questions arise on the exception to such direction and to the refusal of the court to submit certain propositions to the jury.

It appears that in the latter part of October, 1880, the plaintiff moved out of the house and into another near by, rented it to a tenant for a term ending the first of April following, and he moved in. The tenant left the premises before the end of his term, and shortly after, and about a month before the fire, the plaintiff obtained from him the key of the house and went to it, and within a week thereafter she commenced moving her furniture into the house with a view to occupying it, and three days before the fire her furniture was all moved into the house, but at the time of the fire she had not gone there. to stay, and no one was then living in the house, and no one had lived in it after the tenant left, but the plaintiff had continued to have work done in the house, plastering, whitewashing, etc., preparatory to going into it to live,- and for that purpose she was engaged in it every day for two weeks preceding the time of the fire. The language used in the policy is entitled to a construction as favorable to the assnred as it will fairly permit, and every reasonable intendment will be allowed in support of such view as will give protection to the assured and defeat forfeiture. (Hoffman v. Ætna Ins. Co., 32 N. Y., 405; Reynolds v. Commerce Ins. Co., 47 id., 597.) And reference must be had to the understanding which the assured was at liberty to derive from the terms employed, in view of the purposes for which it may be assumed they were used, and their common acceptation should control as distinguished from a technical meaning of the language. In that sense the house was not vacant at the time of the fire. That term fairly imports that it is not used for any purpose, that it is substantially empty. And the application of the word unoccupied is entitled to a reasonable interpretation, and should be controlled and qualified by the condition and circumstances in view, and as the parties may be deemed to have understood its application in the contract to the situation, having reference to the incidents and contingencies which may fairly be anticipated to attend the use of the premises. The rule of construction and application of words used in such contract, is well stated and defined by the court in Whitney v. Black River Insurance Company (72 N. Y., 117). There the property insured was a saw-mill, and it was held that a suspension of the use and operation of the mill, because repairs had become necessary did not render it vacant and unoccupied within the meaning of those terms. But in that policy it was required that the premises become “ vacant and unoccupied,” to defeat its operation. And such was the term used in the policy which was the subject of the action in Herrman v. Merchants’ Insurance Company (81 N. Y., 184), where the court held that the removal for a season by the owner from the house insured (which was a summer residence), leaving his furniture in it, and intending to return to it for his next summer residence, did not render the house vacant. But in that case, Earl, J., by dictum, adds that if the words had been vacant or unoccupied, or simply unoccupied, a different question would be presented, that “a dwelling-house is unoccupied when no one lives therein, but is not then necessarily vacant.” And in Herrman v. Adriatic Fine Insurance Company (85 N. Y., 162), upon precisely the same state of facts in respect to the removal, the situation in which the house and. furniture were left, and the purpose of the owner to return the policy was held void because it contained the provision that “in case the premises become vacant or unoccupied, and so remain for more than thirty days without notice and consent of the company in writing, the policy shall be void,” and the building was destroyed by fire after the expiration of thirty days from the time of such removal, and before the residence therein of the assured was resumed. In that case the court distinctly held that occupation of a dwelling-house requires that “ there must be in it the presence of human beings as at their customary place of abode, not absolutely and uninterruptedly continuous, brt/tliat must be the place of usual return and habitual stoppage.” There the plaintiff had provided a person who resided in a house adjacent to that destroyed to look after and take care of it, and the assured and his wife made visits to it fortnightly to see that it and its contents were kept in order and the man living on the grounds and his family very frequently made examination and inspection of them for a like purpose. , The teim “ unoccupied ” as applied to a dwelling-house is not, therefore, an open question in this State, and such house must be deemed to be within it when for the time being it is not the.place of abode of human beings-and used as such. And the same has been given as its exclusive meaning and import by the courts in Paine v. Agricultural Insurance Company (5 T. & C , 619); Ashworth v. Builders' Insurance Company (112 Mass., 422; 17 Am. R., 117); Corrigan v. Connecticut Fire Insurance Company (122 Mass., 298); Cook v. Continental Insurance Company (70 Mo., 610; 35 Am. R., 438).

The learned counsel for the plaintiff contends that this is distinguishable in that respect from Herrman’s case, in that there is no limitation expressed of the time it shall remain unoccupied to constitute a breach, and therefore the words “ and so remain with the knowledge,” etc., should be construed to imply a cessation of occupancy without purpose to resume it, or suspension of occupancy in the nature of an abandonment for the time being at least, and that a definite and continued purpose to reoccupy does not permit a breach of the condition or warranty. It is difficult to-see how that contention can be supported. The limitation of the time is that which precedes the injury or destruction by ñre, and the important time is that when it occurs. The fact that the premises become vacant or cease to be occupied does not render the policy void, but that comes from its remaining so with the knowledge of the assured. And the latter fact, however long it may remain unoccupied, if the occupany, has actually been resumed before and exists at the time of the fire does not vitiate the policy. The fair and only reasonable interpretation of the provision is that if the premises become unoccupied and remain so up to and at the time of the fire, there is a breach which renders the policy void. And such was held in Dennison v. Phœnix Insurance Company (52 Iowa, 457) where the phrase was that “ if the premises should become vacant or unoccupied and so remain,” etc. The house in question became unoccupied in the established sense of that term when the tenant moved out. The purpose of the plaintiff to move in and occupy it was at once formed, and she proceeded to prepare the house and take-steps to consummate that purpose, and was just at the point of making the occupancy complete when the loss occurred. But the purpose is not sufficient; that and the act must concur.

In McClure v. Watertown Fire Insurance Company (90 Penn. St., 277; 35 Am. R., 656), it was held that purpose and speedy effort to restore occupancy by placing another tenant in the building did not aid the assured. And such is the rule that the force of the provision of the contract is not modified by nor does it yield to accommodate itself to the purpose, diligence or good faith of the assured, unless the construction of its terms permit. If it may be assumed that a change of. occupants is contemplated by the parties to the contract of insurance, so that during the brief period which may necessarily intervene between the removal of one and the commenced occupancy of his successor, the premises may not be deemed unoccupied within the meaning of the provisions, it is difficult to bring this case within that saving situation, or to say that there was any question of fact in that respect presented by the evidence. (Wait v. Agricultural Insurance Company, 13 Hun, 371.)

A month at least elapsed between the time of the removal of the tenant and the fire. And during the most of that time the plaintiff had knowledge that no one lived in the house. It could not reasonably require that time to move into it, nor could preparation to produce readiness of the house to receive, and of the assured to move into it,, extending through such a period, come within the contingencies contemplated or be treated as a continued occupancy. In Ætna Insurance Company v. Meyers (63 Ind., 238) it was held that the operation of the contract of insurance was, by its terms, suspended during a short temporary period of unoccupancy, but there the language differed from the provision in question. In Dennison v. Phœnix Insurance Company (supra), it was held error to submit to the jury the question whether the house had remained unoccupied an unreasonable length of time. (And see Bennett v. Agricultural Ins. Co., 50 Conn., 420, to the same effect.) The preparation going on by way of plastering, whitewashing and cleaning, cannot, in view of the meaning of the term as before mentioned, be deemed occupancy. (Keith v. Quincy M. F. Ins. Co., 10 Allen, 228; Litch v. N. B. and M. Ins. Co., 136 Mass., 491.) The situation is unfortunate for the plaintiff, and it may be she was unadvised of -the terms of the policy and their effect in the respect in question, but the court could not properly permit her to testify that she could not read, inasmuch as there was no proof, or purpose expressed to furnish any, to the effect that any fraud or concealment was sought to be practiced by the defendant on the plaintiff in respect to the policy or its terms. In the view taken of the case there were no questions for the jury, and therefore no error in the refusal of the court to charge as requested.

The motion for a new trial should be denied and judgment ordered on the verdict.

Barker and Haight, JJ., concurred.

Motion for new trial denied and judgment ordered for the defendant on the verdict.


text:
    HIRAM W. LANE, Respondent, v. JOSIAH H. WHEELER and Others, Commissioners of Highways, etc., Appellants.

      Negligence — duly of commissioners of highways, in erecting bm'ri&rs at unsafe bridges— they a/i'e not liable for injuries sustained by horses while running amay.

    The plaintiffs horses, which were hitched to a wagon, escaped from him, ran for a considerable distance along a highway, and from thence upon a bridge where one of the horses was so injured as to render it necessary to kill him. The injury was occasioned by a hole left in the bridge by the removal of a plank near the end thereof. The bridge was out of repair and not in a fit condition for public use, and the commissioners while preparing to have the necessary repairs made had removed the said plank and used the same in erecting a barricade to warn any person from driving a team upon the bridge and to obstruct their passage over it. There was another bridge near the defective one over which teams could pass.

      Reid, that the commissioners were guilty of no negligence which rendered them liable for the loss sustained by the plaintiff.
    That in placing obstructions to prevent the passage of teams over the bridge they were not required to provide against an injury to misguided horses running away, and to erect a barrier strong and high enough to stop them.
    Appeal from sc judgment in favor of the plaintiff, entered upon a verdict rendered in the Chautauqua County Court.

      O. R. Lockwood, for the appellants.

      Ma/rvin Smith, for the respondent.
   Bradley, J.:

On the 2d day of May, 1879, the plaintiffs horses hitched to a wagon escaped from the plaintiff, ran away, and a considerable distance on to a highway bridge in the town of Carroll, county of Chautauqua, and one of the horses was so injured as to cause its death. The defendants were then commissioners of highways of that town. This action is brought to recover for the loss of the horse which the plaintiff alleges was occasioned by the negligence of the defendants in permitting the bridge to remain out of repair and in an unsafe condition. The evidence relating to the cause, circumstances and manner of the escape of the horses from the plaintiff presented the question of fact whether he was chargeable with negligence. The evidence supported the conclusion of the jury that he was without fault. The immediate cause of the injury was the escape and runaway of the horses. Assuming that the defendants were chargeable with negligence, the question of liability in such case has had diversity of views of the courts in other States. And our attention has not been called' to any in this State founded on a similar state of facts. In Ring v. City of Cohoes (77 N. Y., 83), the cases are reviewed and the rule adopted with apparent approval is “ that when two causes combine to produce an injury to a traveler upon a highway, both of which are in their nature proximate — the one being a culpable defect in the highway, and the other some occurrence for which neither party is responsible — the municipality is liable provided the injury would not have • been sustained but for such defect.” And this proposition is repeated in Ehrgott v. Mayor (96 N. Y., 283).

In Baldwin v. The Greenwoods Turnpike Company (40 Conn., 238; 16 Am. R., 33), the defendant was held liable for an injury to a runaway team which had escaped from the driver and were injured on a defective bridge which it was the duty of the defendant to beep in repair. The cases of Hunt v. Pownal (9 Vt., 411); Houfe v. Town of Fulton (29 Wis., 296; 9 Am. R., 568); Page v. Bucksport (64 Me., 51; 18 Am. R., 239); Hull v. City of Kansas (54 Mo., 598; 14 Am. R., 487); Hey v. Philadelphia (81 Penn. St., 44; 22 Am. R., 733), tend in the same direction, with the difference in tlie facts that the drivers were with the teams when, the injuries were sustained, but lost control of their movements for the time being; and such was the case of Ring v. City of Cohoes.

i In Palmer v. Andover (2 Cush., 600) the town was held liable for an injury occasioned by a defect in the highway, although the primary cause was a disconnected accident. Which case is approved in Davis v. Dudley (4 Allen, 557) and distinguished from the latter, 'where it was held that the plaintiff could not recover because the horse broke away and escapéd from the driver before it was injured. And the same distinction is observed in Stone v. Hubbardston (100 Mass. 49), where the horse escaped from the control of the driver, but did not get away from him, and was injured by a defect in the highway outside the traveled track.

In Kennedy v. Mayor (73 N. Y., 368) the right to recover for an injury, occasioned by defect in a highway, to a horse which has escaped from the driver and is running away, is by dictum questioned.

The proposition sthted and apparently adopted in the Ring case is sufficiently broad to cover the situation in the one at bar, and to charge the defendants with liability if the loss suffered by the plaintiff was occasioned by their negligence. ■ The question of the negligence of the defendants as applicable to the injury sustained is the more difficult one in this case. The general propositions presented by the charge of the court and by the argument of the learned counsel for the plaintiff in respect to the duties of the defendants as commissioners of highways, and their liabilities for injuries caused by their negligence in not keeping the highways and bridges of their town in repair are well and correctly stated. They are'required to use reasonable care for that purpose. And after the continuance of defective condition for such length of time that reasonable vigilance on their part will enable them to ascertain it, the jury may infer and charge them with notice on the principle that what the commissioners by the exercise of required diligence would have learned they ought to have observed. The question of notice arising from lapse of time is usually one for the jury having in view all the circumstances. This bridge rested on piles at the ends and center. The two defendants Wheeler and Thayer were commissioners the year before, and by the report of Febniary, 1879, in which they joined with the third, this bridge was referred to as out of repair. The defendant Adams shortly after became commissioner, and early in April the defendants’ attention was called to its defective condition. The main difficulty with the bridge was that the piles supporting one end were yielding and leaning in towards the stream, and it had settled there some. The reparation required that new piles be driven there to give support to that end of the bridge. In the judgment of the defendants the bridge had become unsafe, until repaired, for use by the public. And sometime after the middle of April they caused notices to be posted at either end of it warning people of the danger of passing over it; and for a week or ten days preceding the time in question obstructions were placed at or near each end of the bridge to deter passage over it with teams, and a portion of the time at least this obstruction or barricade was produced in part by a plank taken up at or near each end, thus making a hole or opening in the floor of it and so placed that persons driving toward the bridge could see the difficulty of passage before entering upon it. There was another bridge over the creek near by on which passage could be had so that no very great inconvenience was temporarily suffered by the traveling public.

In the meantime the commissioners were proceeding to obtain the requisite timber and a pile-driver to make the repair. The evidence tended to prove, and for the purposes of this case it will be assumed, that the injury to the horse was caused by the hole in the bridge, produced by the taking up the plank for the purpose before mentioned. The dilapidated condition of the bridge, which required repair by reason of the defective support, in no manner directly occasioned or contributed to the accident and injury to the horse. They were wholly produced by the means used to barricade the bridge and prevent passage over it. The fact that the defendants were chargeable with negligence for not repairing the bridge, cannot charge them with liability unless that negligence caused the injury. If the bridge had gi ven way by reason of their omission to supply support to the end needing it, then the delay in doing it might have presented a different question. It may be said that if they had repaired the bridge before then, the obstructions to the passage would have been removed and the injury not have been suffered at the time in question, but that is a remote consequence and the failure to repair the bridge cannot be thus applied to this calamity. The matter of delay in repairing might afford a different remedy against the defendants for failure to perform duty. (Day v. Crossman, 1 Hun, 570.) -The fact that the bridge required repair is out of the case, except so far as it bears upon the propriety of the act of obstruction of passage over it and the manner in which it was done.

The question arises, therefore, whether the defendants were chargeable with misconduct or neglect in respect to the means used to stay and prevent passage over this bridge. This question was not very distinctly presented by the court to the jury, nor very definitely by exception taken on the trial. Motion for nonsuit was, on the ground that the defendants were not guilty of negligence, and after the close of the evidence the court was requested to so hold, and exceptions were taken.

The question is fairly within the propositions presented by the exceptions taken, an<3 requires consideration. We must assume that the defendants in good faith believed that the bridge had become unsafe. If they had left the way open to the public to pass over the bridge and without notice of its condition, they would have failed in their duty and might have been subjected to the consequences of injury occasioned to a traveler by reason of the defective condition. They therefore were not only justified, but it was their duty to notify the public of the danger of using the bridge, and to apply means to obstruct and prevent passage over it until repaired; that was the purpose of the condition which caused the injury. Thé plank taken up and a rail were so placed as to produce and show an obstruction to passage over the bridge; and they clearly indicated the purpose in view. The defendants in good faith (as we assume) sought by this means to guard the traveler against danger which might come from the use of the bridge. And upon the evidence, as it appears in the record before us, it is assumed that this barricade was effectual to warn any person driving a team to the bridge and to obstruct his passage on to it. The question arises whether the defendants were required to do anything more to protect the public against danger there, intermediate then • and repair. The defendants were required to provide against those accidents which by the exercise of reasonable care and judgment might be anticipated. They could assume that persons would drive over the bridge unless some means were used to prevent it, but in placing obstructions there they were not required to provide against an injury to unguided horses running away, and to erect a barrier strong and high enough to stay their fury, or the violence of their ungovernable speed. The purpose of the defendants was legitimate. The bridge was within their supervision and they were justified in obstructing passage over it in view of its condition ; and if they did it in such manner as to effectually advise all persons that they could not pass, and to prevent their passage with teams, that would seem to be sufficient. (Parker v. City of Cohoes, 10 Hun, 531; Sevestre v. Mayor, 15 J. & S., 341; Doherty v. Waltham, 1 Gray, 596.)" The plank Was removed from the floor to accomplish this and make the barrier more effectual. This did not increase the danger to the traveler if the barricade was otherwise such as to advise him, but tended to make apparent the difficulty and impropriety of passage. They might have barricaded the bridge with other material and left the floor intact, but for the purposes of protection of the public that would seem to have been unnecessary. The law must locate a line somewhere within which negligence is confined and beyond which public officers have protection. That within their official province, which by the exercise of reasonable diligence on their part may be anticipated and guarded against, comes within their duty; and the failure to exercise that care may charge them with negligence and with liability for the consequences to others. When commissioners of highways have given protection to the use of the highways by the traveling public, having in view all the contingencies and accidents which may be anticipated to arise by such use, they have accomplished what their duties reasonably impose. That horses may escape from the driver and run away is possible, but the consequences of such an accident are not within the range of conjecture, nor can such an event be an anticipated one for which provision is to be made, as distinguished from that which the ordinary and usual means of travel may require. If the latter be not observed, and in consequence an escaped and runaway team is injured, there may be liability within the rule before mentioned. But beyond that the commissioners are not liable for consequences which may result from the unusual event of an unrestrained team running away. (Kennedy v. Mayor, 73 N. Y., 368; Ring v. City of Cohoes, 77 id., 86 ; Moss v. Burlington, 60 Iowa, 438; 16 Am. R., 82; Hey v. Philadelphia, 81 Penn. St., 44; 22 Am. R., 733, 735.)

It is a recognized fact that bridges become defective and must be repaired and that a temporary suspension of travel over them is a necessity. The duty then is with the constituted authorities in charge to barricade the passage so as to protect the traveler. '(Jacobs v. Bangor, 16 Me., 187; 33 Am. Dec., 652.) If the defendants did that in this case there is no apparent reason to charge them with liability for the injury in question. That would cover the necessity and meet the requirement arising from all that could reasonably he anticipated. The view taken of the evidence before • us is that it does not appear that the commissioners did not do all that reasonable diligence required of them to prevent passage over the bridge, or that the manner in which it was done endangered the safety of the public travel. And therefore they are not charged by the evidence with negligence as applied to the injury sustained by the plaintiff. For the purposes of this review the act of producing the obstruction on the bridge in the manner in which it was done has been treated as that of the defendants, and all of them, and we have not deemed it necessary to examine the question presented by the evidence in that respect. In Requa v. Rochester (15 N. Y., 130) the defendant was held liable for injury occasioned by a defect in a bridge produced by the removal of a plank by some person a sufficient time before the accident to justify the inference of notice to the defendant. There the bridge was not otherwise out of repair, and it was permitted to remain open to the public travel without interruption by defendant. Another trial, with attention to the question in respect to the means adopted to stop the use of the bridge by the public and the manner in which it was done, may develop some features which will present a question of fact for the jury.

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

Haight and Childs, JJ., concurred.

•Judgment reversed and new trial ordered, Costs to abide the event.


text:
    DAVID R. MORSE, Appellant, v. THE CITY OF BUFFALO, Respondent.

      Assessment — when the enforcement thereof will not he enjoined.

    This action was brought to restrain the enforcement of an assessment imposed upon land of the plaintiff for the benefit to be derived by it from the co.nstruction of a sewer. The proceedings, which had resulted in the imposition of the assessment, were in all respects regular. The error complained of was that while the plaintiff’s pi-emises had a frontage of but seventy-five fifty one-hundredths feet, they were described in the assessment as having a frontage of ninety-seven eighty-three one-hundredths feet. The error was the result of a mistake and not of fraud. The plaintiff’s lot was irregular in shape, being narrower in the rear than in the front, and it appeared that the assessment upon it was at a less rate per foot, assuming it to be assessed ■ upon its true frontage, than the rate at which other lots fronting on the street were assessed.
    Held, that as the statute did not make the validity of the assessment depend upon the accuracy of the description of the lots assessed, and as it did not appear from the face of the roll that the assessors- were influenced in imposing the assessment upon the plaintiff’s lot by the error in its description, that the action could not he maintained.
    Appeal from a judgment, entered on the -decision of, the Erie Special Term, dismissing the complaint.

      Frank B. Perkins, for the appellant.

      Giles F. Stil/uoell, for the respondent.
   Bradley, J.:

Action to restrain the enforcement of an assessment and to have it adjudged void. The City of Buffalo, the defendant, through its constituted authorities, in a proceeding to cause the construction of a sewer, made local assessments on the lands of the city benefited by the improvement. And the proceedings were in all respects regular. The assessment-roll was completed and delivered to the city treasurer, and thereby the assessments became liens on the lands so assessed. (2 Laws 1870, chap. 519, tit. 7, § 1.) The alleged error and the cause of the plaintiff’s complaint; is that his land is described as having 97.83 feet front on Main street, when in fact its frontage on that street is only 75.50 feet, and that therefore it was assessed for more than its just portion of the amount required for the improvement. It appears, and is not questioned, that the frontage of his land on that street was in fact but seventy-five and one-half feet, and the assessment-roll describes it as 97.83 feet.

There is no charge that this was the result of any fraud on the part of the city, but the error in description probably arose from a mistake in the map referred to in the deed of May, 1871, conveying land to the plaintiff from which the map in the assessors’ oifice may have been made. That map described the land so conveyed as having a frontage on Main street of 201|- feet. Afterward 53.50 feet was taken at the north-east corner from such frontage by the opening of Michigan street. And the plaintiff in 1878 sold fifty feet more of it, leaving, as by the map last mentioned, 97.83 feet.

In making the description of the land in the roll the assessors may have failed to observe this error in the map. If the plaintiff is prejudiced in the assessment of his property by this error he is entitled to relief, and that may properly be given by action. The assessment is a lien on his land which may be sold. (Id., § 3.) The proceeding being regular in form it is a cloud upon the plaintiff’s title, and the error, if it be one, can be exposed only by evidence extrinsic the record. The case then comes fairly within the cases of which courts of equity will take cognizance and afford relief, and it is not important that the plaintiff may have had a remedy by certiorari.

The court will not refuse to entertain jurisdiction of an action in such case or deny its consideration, unless the statute has made the remedy exclusive elsewhere and in a different form. (Hassen v. Rochester, 65 N. Y., 516; S. C., 67 id., 529 ; Boyle v. Brooklyn, 71 id., 2, 5 ; Rumsey v. Buffalo, 20 N. Y. W. Dig., 48.) And remedy may not be denied because amount involved is not large. (Matter of Willis, 30 Hun, 13; Matter of Deering, 93 N. Y., 361.) B.ut it must appear that the error complained of actually prejudiced the plaintiff, and the burden is with him to establish it and make it appear with reasonable certainty. (Matter of Hebrew B. O. A. Society, 70 N. Y., 476 ; Matter of Mead, 74 id., 216 ; Matter of Merriam, 84 id., 596; Matter of Mut. Life Ins. Co., 89 id., 530.) The only purpose of this action is relief against the assessment of fifty-two dollars and seventy-four cents, and that is based on the fact that the description in the assessment-roll of frontage on Main street is twenty-two and one-third feet greater than it should be, and assuming that the assessment is proportionably greater, the excess would be about eleven dollars.

The important question here is whether the description in the roll, necessarily, in this case shows that the plaintiff’s land has been assessed more than its just and proper portion of the burden, and by that is meant whether it appears that the judgment of the assessors would have made the assessment less if the description had been correctly given in the roll. Ordinarily when a defined and apparent rule of estimate and . assessment is found to have governed the assessors in making their assessments for a particular improvement, the departure from it, founded upon a mistaken fact, might show error which could be demonstrated by the roll. In this case they assessed the other lands fronting on Main street uniformly and fully at one dollar and thirty-two cents per foot. The land in question with a frontage of seventy-five and one-half feet they assessed at the rate of only about seventy cents per foot, or only forty feet at the rate of one dollar, and thirty-two cents per foot. The reason for this difference, or why the assessment of this land was alone exceptional in that respect, is that it was triangular in shape and narrower at the rear than in front. The plaintiff, as he was permitted by the statute, made his objections to the assessment to the common council and it was referred back to the assessors as provided by the statute as will be assumed. (Id., tit. 6, § 11.) And they made report to the effect that on the basis of seventy-five and a-half feet front they would not make any deduction of the assessment; that the amount assessed on the plaintiff’s lot was just as it was assessed for only forty feet of sewer. The assessment was confirmed. Assuming as we must that the objections and application were duty made, and that the roll was duty referred back to the assessors for that purpose, it is by no means clear that the action of the assessors may not be in practical effect treated as a new assessment in respect to this lot. (Id.) But we do not consider that question, nor so hold for the purposes of this case. The statute does not make the assessment dependent on the description contained in the roll, nor does it require that the latter shall contain a statement of métes, bounds or quantity. It provides that in the assessment-roll they shall briefly describe the several parcels of land assessed and set down the amount in dollars and cents assessed on each parcel. (2 Laws, 1870, chap. 519, tit. 6, § 4.) The purpose evidently is, of this statute, to merely designate the parcels assessed so that they may severally be distinguished in the roll and to make effectual the notices of the assess» ments given as required. (Id., §§ 5, 8, 12.)

The assessors are required to assess the whole amount upon the parcels benefited by the work.” (Id., § 3.) ’ ■ They have assessed the plaintiff’s land a specific sum, and in the assessment-roll have inserted an erroneous description as before mentioned. Does the latter fact necessarily establish error in the former? There is no evidence that the assessments were governed by quantity other than may be inferred, but the evidence tends to show that they were controlled by actual frontage along which the improvement was located until they reached the land in question, when that manner of estimate disappears and the assessment there made is peculiar to it. The roll is the record and conclusive evidence of the amounts of the assessments and of the lands included in it, but not of the absolute correctness of the description of the respective parcels assessed. It is sufficient if they are fairly so identified by the description given as not to mislead, although it may in some respect be erroneous or defective. The omission in an assessment-roll of lands included in those declared to be benefited, and which by statute are therefore required to be assessed, entitles those whose lands are assessed to-relief and vacation of the assessments as void. (Hassen v. Rochester, 65 N. Y., 516 ; S. C., 67 id., 528.) There the extrinsic fact that lands required to be assessed being established and some of them not appearing in it, the assessment-roll is evidence that those of them omitted are not assessed. But the effect of an error in the description of an assessed parcel is materially different. It is not claimed here that the assessment in question embraced any other than the plaintiff’s land, or that the adjoining land on the street was not assessed, but the claim for relief is based wholly on the erroneous description of the one .line of his land appearing in the roll. The presumption is that the assessment was regularly made and is valid.. ‘(Id., tit. 7, § 36.) The right of the plaintiff to relief cannot depend hpon doubt or uncertainty, but must be clearly shown. The act of assessment may be distinguished from that of the description inserted in the roll, in so far tliat an error in the description may not establish an eiToneons assessment, or an assessment on an erroneous basis. That is the effect of the decision of the trial court, and we think that conclusion was justified. The statute contemplates that there may be imperfect description of lands in assessment-rolls and makes provision for correction by the assessors pursuant to direction of the common council. (Id., § 38.) So that the plaintiff may have no difficulty in having a correct description of his land in any future assessment-roll.

The judgment should be affirmed, with costs.

Barker and Haight, JJ., concurred.

Judgment affirmed, with costs.


text:
    PRUDENCE M. WING, Appellant, v. AMBROSE S. FIELD, Respondent.

      Mortgagee in possession — who is entitled to the rights of.

    In 1855 the owner of certain premises gave a mortgage thereon to one Briggs, who thereafter assigned the same to one Ketchum. In 1869 the said owner conveyed a portion of the premises to one W elch and took back from him a mortgage thereon, which, in October of that year, he assigned to one Wing. In 1872 Ketchum brought an action to foreclose his mortgage, and obtained a judgment therein .under which the premises were sold to the defendant for an amount exceeding that due upon the mortgage. Welch, who was in possession of the land conveyed to him, was not made a party to the foreclosure and the summons was not served upon Wing, nor did he appear therein. The defendant went into possession of all the premises conveyed to him at the time of the sale, except that portion which was in the possession of Welch. January, 1880, Wing foreclosed his mortgage by advertisement, notice being'served upon the defendant, and in April the premises were sold to the plaintiff. In February, 1880, Welch surrendered possession of the premises conveyed to him to the defendant, who then entered upon them, and ever since has remained in posses sion thereof.

      Held, that the defendant occupied the position of a mortgagee in possession, and that an action of ejectment would not lie in favor of the plaintiff.

      'Watson v. Bpenae (20 Wend., 260). and Shrvoer v. Shriver (86 N. Y., 580), distinguished.

      Appeal from a judgment, entered upon the decision of the court at the Wayne Circuit dismissing the complaint.
    The action was one of ejectment. In 1855, Leander S. Ketchum, being the owner of certain premises, made a mortgage of them to one Briggs to secure the payment of $2,100, which was then recorded. In 1869 he conveyed to Barney Welch the premises in question, which were a part of those first mentioned, and Welch then executed and delivered a mortgage to his grantor containing a power of sale (which deed and mortgage were shortly after recorded) and went, into possession of the' premises conveyed to him. In October following Ketchum assigned the latter mortgage to Conway P, Wing.
    Briggs assigned the first mentioned mortgage to Mary J. T. Ketchum, who afterward, in April, 1872, commenced an action to foreclose it. Welch was not made a party to that action, nor was the summons served on Wing, and he did not appear in the action, but all the owners of the equity of redemption of the mortgaged premises, except that portion of them in question, and ■all other persons having any interest in them other than Welch and Wing were made parties and served with the summons. A judgment of foreclosure and sale was recovered, and pursuant to it the entire mortgaged- premises were sold and purchased by the defendant, who paid the purchase-price, which produced a surplus of $2,945.74, and a deed was made to him by the referee August 20,-1872, covering the premises in question, and the defendant then went into possession of all the land, except that portion mentioned in the complaint, of which Welch remained in possession until in February, 1880, when he surrendered the possession thereof to the defendant, who has since then had the possession of it. In January, 1880, Wing instituted proceedings by advertisement under the statute to foreclose the mortgage given by Welch, which were perfected by sale in April, 1880, and the plaintiff became the purchaser. The notice of that proceeding was served on the defendant, and he was present at the sale and there publicly announced that he claimed the title and right to the possession of the premises then sold. The court decided that the plaintiff had “ an estate in fee simple in the premises described in the complaint;” that the defendant had the position of mortgagee in possession of them and 'that the plaintiff was not entitled to recover and directed judgment for the defendant, which was entered.

      H. B,. Durfee, for the appellant.

      Yandenberg c& Saxton, for the respondent.
   Bradley, J.:

The mortgage, foreclosure and sale under which the defendant ■claims title and the right to the possession of the land in question, was a nullity as against Welch, who was the owner of the equity of redemption, because he was not made a party to the action of foreclosure. The purchase, pursuant to the proceedings had to foreclose the mortgage held by Wing, was effectual to vest in the plaintiff title to such equity of redemption. And she was entitled to recover unless the defendant may be treated as a mortgagee in possession under the prior mortgage. He went into possession before the foreclosure of the Wing" mortgage was perfected, and by the consent of Welch, the then owner of the equity of redemption, which gave him the right for the purposes of this action to retain' it as against the plaintiff, if he may be treated as a mortgagee in possession under the mortgage that was the subject of the action which resulted in the judgment and sale pursuant to which he became the purchaser. The mortgage was extinguished by the foreclosure a.nd sale only so far as no beneficial interest existed for keeping the legal,, and equitable estates distinct, but remained effectual to acquire or quiet the unforeclosed interests in the premises subsequent to it, or to require redemption by way of relief for those having such interests or liens not barred by the foreclosure and sale. (Smith v. Gardner, 42 Barb., 356 ; Ross v. Boardman, 22 Hun, 527, 530 ; Vroom v. Ditmas, 4 Paige, 526.) It follows that if the assignee of the mortgage, who was the plaintiff in that foreclosure action, had been the purchaser at the sale and went into possession of the land in question by the consent of Welch prior to the foreclosure of the Wing mortgage, he would have been deemed a mortgagee in possession and could have held it as against the plaintiff, and her only remedy would have been that of redemption. (St. John v. Bumpstead, 17 Barb., 100.)

The statute in force at the time of the foreclosure by the defendant provided that the deeds given in execution of such judgments and sales “ shall vest in the purchaser thfe same estate (and no other or greater) than would have vested in the mortgagee if the equity of redemption had been foreclosed, and such deeds shall be as valid as if the same were executed by the mortgagor and mortgagee, and shall be an entire bar against each of them and against all parties to the suit in which the decree for such sale was made.” (2 R. S., 192, § 158.) And on the repeal of that statute (Laws of 1877, chap. 417), that which became a substitute for it contained substantially the same provisions. (Code Civil Pro., § 1632.)

It would seem that 'the defendant as purchaser acquired the rights of the mortgagee in so far as the mortgage, as distinguished from the judgment and sale, was requisite to preserve and protect any rights afforded by it. (Jackson v. Bowen, 7 Cow., 14; Brainard v. Cooper, 10 N. Y., 356, 358; Packer v. R. and S. R. R. Co., 17 id., 288 ; Robinson v. Ryan, 25 id., 320; McMurray v. McMurray, 66 id., 176, 180, 181; Smith v. Gardner, 42 Barb., 366, 367; Belden v. Slade, 26 Hun, 635.) And the surrender of the possession by Welch, the owner of the equity of redemption, to the defendant,, after the purchase and taking of the referee’s deed by the latter and his going into the possession, with the consent of Welch, were effectual to give to the defendant the relation^of mortgagee in possession and all the rights incident to it. The equity of redemption was not extinguished or impaired by the foreclosure action and sale, but remained with the right of redemption in Welch until the sale to the plaintiff on the foreclosure of the'subsequent mortgage and thereafter was in her. The plaintiff’s counsel contends that the judgment of foreclosure was void because the owner of the equity of redemption was not a party to that action, and that the defendant derived no right as purchaser which could enable him to occupy the position of mortgagee in possession, and cites Watson v. Spence (20 Wend., 260), and Shriver v. Shriver (86 N. Y., 580), in support of his contention. To constitute a mortgagee in possession he must go in by virtue of legal process, or by the consent of the owner of the equity of redemption; that is to say, the .possession must be lawfully acquired to support such relation. (Phyfe v. Riley, 15 Wend., 248; Van Duyne v. Thayre, 14 id., 236 ; St. John v. Bumpstead, 17 Barb., 100; Madison Av. B. Church v. O. St. B. Church, 73 N. Y., 82.)

The proceedings in the action were a nullity as to Welch, but the sale and purchase were not void as a whole. It was effectual as to all the rights of the plaintiff in that action in the mortgage, and vested them in the defendant. In Watson v. Spence, as reported, it does not appear how the defendant there got into possession. It may be he went in by force of the decree and claimed the right by virtue of his purchase and the master’s deed, and such may fairly be the inference. The proceeding and sale being void as to the plaintiffs in that action, who had the equity of redemption, the master’s deed afforded the defendant no right and his possession taken in invitum would not be lawful, and therefore not effectual to give him any right as a mortgagee in possession, and nothing appears in the ease from which it can be inferred that he took or had possession with the consent of the owner of the equity of redemption. And assuming, as we do, that the possession there was unlawful for want of both consent and valid process, that case, in its result, is not subject to criticism. It is in that view, it may be assumed, that the expression was made by the chief justice, in Shriver v. Shriver, to the same effect. If the defendant had taken possession by force and aid of a writ of assistance in execution of the judgment, and held it-without the consent of Welch, he could not have successfully defended this action as a mortgagee in possession. Those cases, relied upon by the plaintiff, would then have been applicable, but upon the facts*here they give her no support as authority.

The contention that as the defendant was served with notice in the statutory proceeding to foreclose the Wing mortgage, and did not take any steps to establish any right, he was charged by that foreclosure as holding subordinately to that mortgage, and the right of the plaintiff as purchaser cannot be supported. The defendant’s right of possession being founded in the prior mortgage, was paramount to that which could be given by the foreclosure of the other mortgage. And his rights in that respect were not barred or affected by the proceeding to foreclose it, nor did the notice served on him in the proceeding require any action on his part for his protection. (2 R. S., 546, § 8; Arnot v. Post, 6 Hill, 65, 67; Lewis v. Smith, 9 N. Y., 502; Payn v. Grant, 23 Hun, 134; Rathbone v. Hooney, 58 N. Y., 468.) The defendant alleges in his answer the facts which constituted him a mortgagee in possession as we view the case. It follows that the plaintiff was not entitled to-recover the possession of the premises.

The judgment should be affirmed.

JBarkeb, TIaight and Corlett, JJ., concurred.

Judgment affirmed.


text:
    FREDERICK A. SHALE and FREDERICK S. MINGES, Plaintiffs, v. HENRY SCHANTZ, Defendant.

      Swrmml of action for slander brought by partners — when the action does not abate by reason of the death of one of the partners.

    An action brought by the,members of a firm, to recover damages for an alleged slander relating to the financial condition and credit of the firm, does not abate by the death of one of the plaintiffs during its pendency. The entire cause of' action vests in the surviving plaintiffs and the action may be prosecuted by them.
    Motion by the plaintiffs for a new trial on exceptions taken at the Monroe Circuit, and ordered to be heard in first instance' at General Term.
    This action was commenced by the present plaintiffs Shale and' Minges and one Joseph Schantz, who were partners engaged in the business of ffianufacturing and selling furniture and cabinet-ware at the city of Rochester in the firm name of Schantz, Minges- & Shale. The cause of action alleged is slander relating to and affecting the financial condition and credit of the plaintiffs as a firm. After the issue was perfected the plaintiff Schantz died. That fact appearing at the trial the complaint was dismissed on the ground that the cause of action abated on and by reason of the death of one of the plaintiffs. The plaintiffs excepted.

      Thomas Raines, for the plaintiffs.

      Jamies Break Perkms, for the defendant.
   Bradley, J.:

The slander and injury resulting as alleged in the complaint, related to and affected the business of the plaintiffs as a firm only, and several instances are specified in which they as such suffered in their business credit in consequence, of the imputations made by the alleged words so spoken by the defendant. The complaint charges a cause of action which properly joined the partners as plaintiffs. (Cook v. Batchelor, 3 Bos. & Pul., 150; Haythorn v. Lawson, 3 Carr. & P., 196; Taylor v. Church, 8 N. Y., 452.)

If the action had been brought by a sole plaintiff who had died during the pendency and before verdict, the action would have then abated. On the -part of the defendant it is contended that the death of one of the plaintiffs produced a dissolution of the partnership, that the firm then ceased to exist; and therefore the practical effect is the same as that produced by the death of a sole plaintiff. The question is novel and must be disposed of on principle deemed applicable to the nature of a partnership and the relation of the surviving members to it. If it may be said that a firm as such, has an existence in the legal sense distinct from its members, that the right of action depends upon the continuance of such entity, and that by the death of one of its members that entity disappears, then a reason can be seen for the result given at the circuit. In such case there would remain no plaintiff to prosecute the action and it would necessarily abate. But on the death of one of-several mem-bers of a partnership no personal 'representative takes his place in respect to the partnership property. He, by the event, is taken out of the firm and a dissolution is the consequence, but practically the dissolution has relation only to subsequent business transactions to a qualified extent. While the agency in the surviving members is so qualified that they cannot create any new obligations or' liabili-' ties, their relation to the situation in which the death of the member left the property and business, enables them respectively to manage and control its affairs as fully and completely as before.

At law it is theirs, and by them the property may be sold, debts of the firm paid, and those due it collected. And for all things necessary to be done for those purposes the partnership condition and relation continue until they are accomplished. (Collyer on Part., §§ 118, 546; Houser v. Irvine, 3 Watts & Serg., 345; 38 Am. Dec., 768; Murray v. Mumford, 6 Cow., 441; Robbins v. Fuller, 24 N. Y., 570, 574; Butchart v. Dresser, 4 De G., M. & G., 542, 544.)

The joint relation of the survivors is not broken into a tenancy in common by snch death, nor are their relation and equities impaired by it. The property of the firm does not. nof do any rights of action in respect to its matters pass to any representative of the partnership. It and all the then existing rights of the firm continue in the survivors, and are theirs at law the same as they had been prior to the death of the one member; the property and rights of all united. And to'that extent, and for all practical purposes limited as before mentioned, it may be said that the place prior to that event filled by the three is after such death occupied by the two survivors. (Adams v. Hackett, 27 N. H., 289 ; 59 Am. Dec., 376 ; Nehrboss v. Bliss, 88 N. Y., 600, 604.) The title and rights of the survivors are original and complete in them. The law recognizes no distinction between a debt due the survivors in their own right and as surviving partners. They may join in the same action a claim due them independent of it, with one arising out of the partnership business; and in an action to recover the latter alone the party sued may set off a debt due him from them having no relation to the transactions of the firm. (Collyer on Part., § 764; Holbrook v. Lackey, 13 Met., 132, 134; Nehrboss v. Bliss, 88 N. Y., 604.) The relation of the surviving plaintiffs to the action is in no sense that of representatives or assignees of the firm as distinguished from the firm itself. The cause of action is theirs, deemed originally theirs, and continues to be such. They in law are principals and owhers in respect to the matters of the partnership by virtue of their relation as partners and because they are survivors. Their rights in that respect are not derivative or representative. The right of action in question was in the firm. The death of the member neither vests any riglits in the survivors, nor does it divest them of any rights of property or action then existing. In the prosecution of this action they are exercising no new or derived powers, and asserting no .new or additional rights. (Adams v. Hackett, 27 N. H., 289; 59 Am. Dec., 376, 377.)

It is difficult to see anything in the way of the commencement by these plaintiff’s of the action after, if it had not been instituted before, the death of their associate. And that would seem to follow if they can continue to prosecute this one, but it is unnecessary here to assert that proposition and we do not. The contingent interest of the personal representative of the deceased partner in the assets -of the firm is entitled to no' consideration here. That right, snch as it is, can arise in equity only, and is dependent upon the residue after payment of the partnership debts and winding up of its affairs, when the surviving partners may be treated as trustees if anything remains and may be required to account. This is an action at law where no such representative relation in respect to the property or rights of action of the firm will be recognized. And it is in equity only that an entity of a partnership distinct from its members is recognized. (1 Story Eq. Jur., § 680; Walker v. Wait, 50 Vt., 668 ; Seighortner v. Weissenborn, 20 N. J. Eq. [5 C. E. Gr.], 172 ; Cole v. Reynolds, 18 N. Y., 77.)

The view taken of this case is that the entire cause of action is in the surviving plaintiffs, because it was in the firm. That there has been no demise requiring revival of the action, but they are the beneficial parties plaintiff, and the action proceeds for their benefit. (Code Civ. Pro.,§ 758.)

In Dyckman v. Allen (2 How., 17), cited by the defendants’ counsel the plaintiffs were tenants in common and a different rule in such case prevailed. (Zabriskie v. Smith, 13 N. Y., 322, 337, 338.)

These views lead to the conclusion that the action is still pending and that a new trial should be granted, costs to abide event.

Haight and Childs, JJ., concurred.

Motion for new trial granted, with costs to abide the event.