text:
    Simon Rothschild, App’lt, v. Rio Grande Western Railway Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

    1. Mortgage—Construction.
    The rule that amhigious phrases are to be taken most strongly against the covenantor, should be applied vigorously to the construction of trust deeds or mortgages, which purport to be designed for securing the payment of the bonds of the obligor.
    2. Same.
    A provision in a trust mortgage, prohibiting a bondholder from pursuing any remedy at law or in equity, except in the manner therein provided, was construed as not to affect the right of a bondholder to sue at law on his bond.
    3. Same.
    When the bonds and trust mortgage contain inconsistent provisions, those contained in the bonds will prevail.
    Appeal from a judgment, dismissing the complaint.

      This action was brought February 14, 1890, to recover a judgment for money only on 110 coupons, each for the payment of $30, the semi-annual interest due on the 1st day of September'and on the 1st day of March in each year, from September 1, 1884, to-September 1, 1889, inclusive, cut from 10 bonds, of $1,000 each, issued by the Denver & Rio Grande Western Railway Company. This corporation was organized under the laws of the territory of Utah, and authorized to construct and operate a railroad in that territory. August 1, 1881. the corporation executed and recorded a mortgage to secure certain bonds to be thereafter issued, at the rate of not exceeding $16,000 per mile. Among other provisions, the mortgage contains the following:
    “ Article VIII. It is further distinctly stipulated, mutually covenanted, and agreed (any law or usage to the contrary notwithstanding) that neither the trustee, nor his successor or successors, in the trust, nor the holder or holders of any bond or bonds hereby secured, shall pursue any remedy at law or in equity for obtaining possession of, or procuring a sale of, the trust property hereby transferred and conveyed, or intended so to be, or any part thereof, otherwise than in the manner herein provided for enforcing his or their rights and demands, or recovering the whole or any portion of the principal or interest of the said bonds ; it being the intention, stipulation, covenant, and agreement of the parties hereto, with each other and the bondholders secured hereby, for the better protection of the holders of the bonds hereby secured, collectively, and for the securing of the largest possible benefits and proceeds from the trust property, or any portion thereof, that-the modes and remedies of entry or of sale, or both, hereinbefore provided, shall be exclusive of all others. It shall, however, be the duty of the trustee to exercise the power of entry hereby granted and conferred, or the power of sale hereby granted and conferred and delegated, or both, whenever, after default, as aforesaid, the trustee-might or could, at his discretion, exercise such powers, or either, respectively, and the holder or holders of bonds secured hereby, to the amounts as hereinafter specified, as applicable to the several cases of default with reference to such powers,, respectively, shall in writing require, and at the same time properly indemnify the trustee, in such manner and form as he may reasonably require, against all costs, expenses, and other liabilities which may or shall be by him incurred in the premises, subject, however, to the qualifications hereinafter contained : First, if the default be as to payment of the principal of any bonds secured hereby, or of any interest thereon, the trustee shall exercise the power of entry, on such requisition therefor, and indemnification, by the holder or holders of not less than twenty-five per cent, of the total amount of such bonds, in respect whereof, such a default, was, or defaults were, made; second, if the default be as to any other act or thing by these presents required to be done and performed by the company, the trustee shall exercise the power of entry, on such requisition therefor, and indemnification, by the holder or holders of at least twenty per cent, of the amount of such bonds outstanding at the time; and, third, if the default be as to the payment of the principal of said bonds, or any of them, the trustee shall exercise the power of sale, on such requisition therefor, and indemnification, by the holder or holders of at least twenty per cent, of the amount of such bonds due at the time thereof. No bondholder or bondholders, except the bondholder or the bondholders who shall have made such requisition and given such indemnification, shall be entitled to make any complaint or institute any proceedings against the trustee in or before any court, tribunal, or authority whatsoever and wheresoever, in respect of any delay, neglect, omission, or refusal of the trustee to exercise the powers of entry or of sale, or both, hereby conferred, or in relation to his acts and dealings in the premises.”
    Pursuant to this mortgage, the corporation issued a large number of bonds, dated September 1, 1881, of which the following is a copy, except that each bond bears a different number:
    “ $1,000.
    “ United States of America,
    “Utah Territory.
    “ The Denver and Rio Grande Western “(M) Railway Company. (M.)
    “ First Mortgage Gold Bond, Six Per Cent.
    “ Thirty years after date, the Denver and Rio Grande Western Railway Company will pay to the registered owner hereof, or, if not registered, to bearer, one thousand dollars. Interest on said sum, at 6 per cent, per annum, will be paid half-yearly, March first and September first, to the bearer of the annexed coupon therefor, on surrender thereof. Principal and interest payable in United States gold coin at the company’s agency in New York. City. This bond is entitled to the benefits, and subject to the provisions, of the trust deed dated the first day of August, 1881, made by the company to Louis H. Meyer, trustee of the railroad and other property, rights, and • franchises therein described, to secure this and other bonds of the company to be issued thereunder, as therein set forth, to an extent not exceeding $16,000 average per mile, which trust deed also provides, in the several cases of default, as therein specifically stated, for the right in the trustee to exercise the power of entry thereby conferred, the right to declare the principal due, to sell in case of nonpayment of such principal, subject to the qualifications therein contained, to which trust deed reference is hereby made. This bond shall not become obligatory until the certificate indorsed hereon, authenticating the same as issued under said trust deed, is signed by the trustee.
    “In witness whereof, the said company has caused its corporate seal to be hereunto affixed, attested by the signature of its president and secretary,' and has likewise caused a [l. s.] facsimile Of the signature of its treasurer to be attached to each of the coupons annexed, this first day of September, 1881.
    “The Denver and Rio Grande Western Railway Company,
    “By — -, President. ill UVU li • “$1,000. $1,000.”

      The said bond is endorsed as follows :
    “Trustee’s Certificate.
    “I hereby certify that this is one of the bonds issued in conformity with, and under the provisions of, the trust deed mentioned within.
    “L. H. Meter, Trustee.

    “Registration.
    “This bond may be registered in the owner’s name on the company’s books in New York City, such registry being noted on the bond by the company’s transfer agent, after which no 'transfer shall be valid, unless made on the company’s books by the registered owner, and similarly noted on the bond ; but the same may be discharged from registry by being transferred to bearer, after which it shall be transferable by delivery, but it may be again registered as before. The registry of the bond shall not restrain the negotiability of the coupons by delivery merely.”
    Annexed to each bond were 60 coupons for the payment of the half-yearly interest, of which the following is a copy, except number and date of payment.
    “Will pay to bearer, on the first day of-, thirty dollars, in IT. S. gold coin, on surrender of this coupon at its agency in New York City, being --—• $30, 6 months’ interest on its first mortgage 6 per cent, gold bond. No.-
    “--, Treasurer.”
    The State Line and Denver Railway Company was incorporated under the laws of the state of Colorado, and authorized to construct and operate a railroad in that state. On June 24,1889, the Denver and Rio Orando Western Railway Company and the State Line and Denver Railway Company were, pursuant to the statutes of said state and territory, consolidated into one corporation, under the name of the Rio Grande Western Railway Company, which corporation assumed all the debts and liabilities of the constituent corporations, to the same extent as though said debts and liabilities had been incurred by it. This assumption was pursuant to the statutes of the state and territory under which the consolidation was effected. At the date of the consolidation, the Denver and Rio Grande Western Railway Company had made default in the payment of the coupons Nos. 6 to 15, inclusive, annexed to its bonds, which fell due September 1, 1884, March 1, 1885, September 1, 1885, March 1, 1886,' September 1, 1886, March 1, 1887, September 1, 1887,March 1,1888, September 1, 1888, and March 1, 1889. And said corporation and this defendant made default in the payment of coupon No. 16, which fell due September 1, 1889, after the consolidation. Payment of these coupons was duly demanded of the defendant, which it refused to pay, and thereafter this action was begun.

      George Hoadly and William Strauss, for app’lt; Theodore F. H. Meyer for resp’t.
   Follett, J.

The sole defense interposed to this action is that, under article 8 of the deed of trust above quoted, the owner of coupons cannot maintain an action at law to recover the amount due on them. The bond contains an unconditional covenant to pay $1,000 30 years after its date; and the bond and coupons, an unconditional promise to pay the interest on the bond semi-annually, on the 1st day of March and the 1st day of September in each year, at the rate of 1 per cent, per annum ; and there is no hint in the bond or in the coupons that the owner may not, in case of default, maintain an action at law for the recovery of the principal or interest as it falls due. It is recited in the bond :

“This bond is entitled to the benefits", and subject to the provisions, of the trust deed dated the first day of August, 1881, made by the company to Louis H. Meyer, trustee of the railroad and other property, rights, and franchises therein described, to secure this and other bonds of the company, to be issued thereunder as therein set forth, to an extent not exceeding $16,000 average per mile, which trust deed also provides, in the several cases of default as therein specifically stated, for the right in the trustee to exercise the power of entry thereby conferred, the right to declare the principal due, to sell in case of nonpayment of such principal, subject to the qualifications therein contained, to which trust deed, reference is hereby made.”

The language, “which trust deed also provides, in the several cases of default as therein specifically stated, for the right in the trustee to exercise the power of entry thereby conferred, the right to declare the principal due, to sell in case of nonpayment of such principal, subject to the qualifications therein contained, to which trust deed reference is hereby made," is not calculated to inform the purchaser of a bond that he cannot sue at law for defaulted interest, but informs him that in case of default the trustee may enter into possession, and sell the mortgaged property, as provided in the mortgage. This paragraph clearly indicates that the rights and powers of the trustee to enforce the trust deed are expressed therein, and are to be pursued as therein provided, but there is no intimation that the right of the bondholder to sue for the money which becomes due is denied or cut off by the trust deed. Undoubtedly, the bond and trust deed are to be construed together, but, in case there is any ambiguity in any of the provisions of the mortgage, such ambiguity must be construed against the corporation. It is an elementary rule for the construction of contracts that ambiguous phrases are to be taken most strongly against the covenantor, whose words they are. This rule is universally applied to contracts of insurance, and to instruments which are wholly devised by or in behalf of the covenantor, and it should be rigorously, applied to the construction of trust deeds or mortgages, which purport to be designed for securing the payment of the bonds of the obligor. It is true that these deeds are matters of record, but the records are often in a state distant from the place at which the bonds are sold, and the purchaser seldom has an opportunity of examining the terms of the instrument. Article 8 was evidently designed to prescribe the conditions authorizing the trustee or bondholder to enforce the trust deed, and the manner in which it might be enforced, for the purpose of collecting out of the mortgaged property the sums due and unpaid on the bonds; and, reading the whole article together, it is not fairly capable of any other construction. As contended by the learned counsel for the appellant, the words, “any remedy at law or in equity for obtaining possession of, or procuring a sale of, the trust property hereby transferred,” qualify and govern all the other words of the first paragraph of the eighth article. The contention of the defendant would, in effect, exempt all of the property of the corporation, not covered by the mortgage, from liability to be taken in satisfaction of its bonded debt. It is not so stipulated in the trust deed, nor in the bonds, nor in the coupons. But, on broader grounds, we think the contention of the defendant ought not to prevail. As before stated, we concede that the bonds and trust deed are to be construed together, as forming the contract, in case they can be harmonized, but in case the bonds and deed contain wholly inconsistent provisions, those contained in the bond must prevail over those contained in the deed. The provisions of the bond meet the eye of the purchaser, -and are designed- by the corporation to influence their sale, and they cannot be nullified by an inconsistent provision contained in the trust deed. As before stated, these bonds and coupons contain an absolute promise to pay definite sums on specific dates, which implies a right of action in case of failure; and, if the eighth article is capable of the construction contended for by the corporation, it is utterly inconsistent with the bond, which in that case must prevail. The judgment should be reversed, and a new trial granted, with costs to the appellant to abide the event.

All concur.


source: Caselaw Access Project

author: O'Brien, J.

license: Public Domain

text:
    Jewelers’ Mercantile Agency, Limited, Resp’t, v. Jewelers’ Weekly Publishing Company et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

    ,1. Copyright—How secured .
    To secure a copyright, the publication must be made within a reasonable time after entry of the title and deposit of the two copies.
    2. Literary property—Loss.
    An author or compiler is not deprived of his literary property, by depositing the hook in the Congressional Library in an ineffectual attempt to obtain a copyright.
    3. Same.
    A person may print any number of copies, of which he remains the owner and, by contract, may so restrict their use to those, to whom he lends them as to retain his original rights.
    4. Same.
    The selling or offering to sell the names and addresses contained in the books on envelopes sent to non-subscribers will not constitute a publication, so as to destroy literary property in such books.
    5. Same—Proof of appropriation.
    The same errors in defendant’s directory as are found in a similar book previously compiled by plaintiff show an appropriation of matter contained in the latter book.

      It will not do to take a general objection which is not good, and then, on appeal, seek to destroy the effect of the testimony by presenting specific objections, .which would have been good had they been presented at the time the testimony was given.
    Appeal from a judgment in favor of plaintiff.

      Leopold Sondheim, for app’lts ; Howard Mansfield, for resp’t.
   O'Brien, J.

The judgment appealed from enjoined the defendants from making any use of the plaintiff’s reference books or confidential sheets, and from copying, appropriating, printing, publishing, or using in any way, information taken therefrom, or furnishing such information to others. Such judgment is based on the following facts found by the court: The plaintiff, a domestic -corporation organized in 1883, has ever since been engaged in the business of a mercantile agency, which consisted in obtaining from various sources information regarding the places of business, street addresses, particular kinds and extent of business, commercial standing and mercantile credit, of individuals, firms, and corporations engaged in the jewelry trade, throughout the United States ■and Canada, and in furnishing confidentially, for the use of subscribers, such information. This information, obtained at considerable expense, is twice a year printed in the form of a reference book, which is furnished exclusively for the use of plaintiff’s subscribers. A duplicate, of smaller'form, is furnished upon like conditions. These books are leased to subscribers, upon a contract printed in each, which restricts the use of the book, and requires its return to the plaintiff, no copy of the book ever being sold. The plaintiff also issues weekly to subscribers a confidential sheet of changes and corrections, furnished subject .to the conditions of subscription. The defendant corporation was organized in January, 1891. This corporation took over the business which before had been carried on by the defendant Rothschild, and still earlier by both of the individual defendants. Some time prior to the incorporation, the individual defendants had been subscribers to the plaintiff’s book, but their subscription ended in 1886, and was not renewed. Prior to the defendant’s incorporation, one Keller suggested to Rothschild the issue of a “jewelers’ weekly complete -directory,” and he was permitted to undertake the compilation of the book, without special oversight on the part of Rothschild, or other officers of the corporation. Much of the information thus ■compiled was obtained by copying names and addresses from directories belonging to the Trow Directory Company, except for those states of which that company had no directory; and, in respect to these, a list of jewelers was furnished, which, according to the statement of a manager of the directory company, was purchased from a lady named White, without inquiries as to where -she got it. This book, when printed and issued, was sold for $3 a copy, and came in direct competition with plaintiff’s reference book, for the use of which plaintiff received from subscribers $75 a year.

Plaintiff’s claim, in substance, is that the defendants unlawfully took and appropriated from its reference book, issued confidentially to its subscribers in July, 1890, certain information, which was incorporated in the compilation prepared by Keller. In support thereof, evidence was offered tending to show that numerous errors of fact, which had crept into the plaintiff’s reference book of July, 1890, appeared in the defendant company’s book. Fifteen such instances in the state of New York were testified to in detail. Some of these consisted of misspelled names and of the placing of names out of alphabetical order, which errors were identically the same as in the defendant company’s book.- On behalf of the defendants, in addition to testimony as to the sources from which the information was derived, already alluded to. evidence was offered to the effect that in June, 1890, the plaintiff deposited in the copyright office, with the librarian of congress, the title of the plaintiff’s reference book of July, 1890, and on the same day deposited in the office of the librarian of congress two-copies of said reference book, and printed on the page following the title page the following notice : “ Entered according to act of congress, in the year 1890, by the Jewellers’ Mercantile Agency, Limited, in the office of the librarian of congress, at Washington.”

Upon such testimony, and the evidence appearing, and the books themselves, the court below found that the defendant corporation’s book contained material information, directly copied or otherwise appropriated from the plaintiff’s confidential reference book, and that the information so-copied and appropriated formed an important and necessary part of the defendant corporation's directory; that such acts, unless restrained, would be a substantial injury to the plaintiff in its business,—and directed the entry of the judgment appealed from. To obtain a reversal of such judgment, the defendants insist (1) that this court has not jurisdiction to grant any relief in this action, because the work from which it is claimed information was wrongfully taken is a copyrighted work; (2) that this action cannot be maintained by the plaintiff, because it has lost any literary property it ever had in its reference book of July, 1890, by publishing the same ; (3) that no information contained in the defendant’s book was ever obtained by it or its-agents, in any way, from any of the plaintiff’s books of July, 1890, or from any of its books or sheets; (4) that the complaint against Rothschild and Ulman must be dismissed on the merits, as the plaintiff offered no testimony to substantiate its charges, made against them in its complaint.

First, upon the question of jurisdiction. The plaintiff did not, in its complaint or upon the trial, invoke the copyright law, or seek a remedy for a violation of its copyright. It stood upon its common-law right to unpublished material, in which it insisted it had always retained exclusive property. It is not necessary for us to determine whether, had it obtained a copyright, and waiving its remedy thereunder, it could stand upon its common-law right, though there appears to be authority for the proposition that the statute conferring jurisdiction in cases relating to copyrights upon-the federal courts does not affect any pre-existing jurisdiction which exists at common law independently of all statutes. Isaacs v. Daly, 39 Super. Ct. 511; Palmer v. De Witt, 47 N. Y. 532. In the latter case, it is said:

“ But if jurisdiction is, by the statute, conferred upon the federal courts in a case like this, the act does not purport to, and does not, make the jurisdiction exclusive, or deprive state courts of jurisdiction in actions, legal or equitable, touching the common-law rights of authors. At most, the statute gives parties within its provisions, and not claiming the benefits of a copyright under the laws of the United States, a cumulative remedy, and a choice of tribunals. The jurisdiction of the state courts, in cases in which it had before been exercised, was not taken away, or in any respect impaired.”

There is nothing inconsistent with those cases in that of Potter v. McPherson, 21 Hun, 562, relied upon by the appellants, which holds that:

“If the book lias been copyrighted under the laws of the United State, while that would secure to the plaintiff the right to restrain its publication by the defendant, under those laws, it would not afford this court jurisdiction over the subject-matter of the controversy.”

Potter v. McPherson is authority for holding that where the plaintiff seeks a remedy, under the copyright law, for an injury to property rights thus secured, the United States courts have exclusive jurisdiction. Where, however, as here, no remedy is sought under the copyright law, but the plaintiff is standing upon its common-law rights, this court, seemingly, would have jurisdiction. It is unnecessary for us authoritatively to decide this question, however, for the reason that no copyright was secured by the plaintiff. It is true that the initiatory steps were taken with a view to acquiring such rights, but the failure torn ake a publication essential to obtain a copyright prevented the securing of the same. As held in Boucicault v. Hart, 13 Blatchf. 47, Fed. Cas. No. 1,692, publication must be made within a reasonable time after entry of the title and deposit of the two copies. And, for a definition of “publication,” we find it stated in Drone on Copyright (page 284):

“ A book is published when printed copies are sold unconditionally to the public. To constitute a publication, it is essential that the work shall be exposed for sale, or gratuitously offered, to-the general public, so that the public, without discrimination as to> persons, may have an opportunity to enjoy that for which protection is granted. Printing, itself, cannot amount to a publication,, for the obvious reason that a book may be withheld from the pub- ” lie long after it is printed.”

We think, therefore, that as the plaintiff never secured a copyright, and as this would prevent the relief it has sought upon an application to the federal courts, this court had jurisdiction to entertain the action, and, upon suitable proof, to grant relief.

This conclusion, to some extent, disposes of the appellants’ second assignment of error,—that plaintiff, by reason of publishing its reference book in various ways, had lost any literary property it ever had therein. Thus, it is insisted that, by the deposit in the library of ■congress of the two copies of the book, the plaintiff made a complete, formal and solemn dedication of it to the public; and, to support this, our attention is called to the Eevised Statutes of the United States, which recite what books shall compose the library of congress, and who shall be entitled to access thereto, from which the conclusion is sought to be induced that because public inspection is allowed, and to certain persons, and upon certain conditions, a loan of such books may be made, this, by constituting such library a public library, operated, with respect to such books deposited therein, as a public dedication. The answer seems to be that books so deposited cannot pass into general circulation,, their use being specially restricted by statute; and though it is true that there is a clause in the regulations of the library allowing the loaning of books, upon deposit of the value thereof, tips, as shown by the instructions given to the librarian by the joint committee of ■congress on the library, has been expressly declared to be contrary to law. With respect to books so deposited, while there may be free access by the public, and a right to inspect the same, this does not include the right or authority to take copies', and thus ■deprive the author of his property rights therein. In other words, the distinction is clear between the right of inspection and the right to copy and use such books.

Apart, however, from this, the appellants insist that plaintiff has lost its common-law right to any literary property it ever had in its reference books, by printing and offering them to any one who would become a subscriber, and that the mere making of a contract with the subscriber to return the book, and keep the information confidential, is not sufficient to make the publication a restricted one. In this we think the appellants overlooked the facts appearing, that the book was never sold, and that its use was restricted; and, though printed and issued to subscribers, this was not such a publication as would destroy the plaintiff’s original property rights in the book. We think the authorities amply ■support the respondent’s view that, both in England and in this country, an author or compiler has the right to his literary property, at common law, without0 respect to the copyright statutes, and that, although such right may be lost by publication, yet a person may print any number of copies, of which he remains the owner, and, by contract, may so restrict their use to those to whom he lends them as to retain his original rights. This has repeatedly been held to be the law with respect to trade and other directories. Kelly v. Morris, L. R. 1 Eq. 697 ; Morris v. Aslibee, L. R. 7 Eq. 34; Prince Albert v. Strange, 1 Mac. & G. 25 ; Palmer v. De Witt, 47 N. Y. 532 ; Sold and Stock Telegraph Co. v. Todd, 17 Hun, 548 ; Kiernan v. Manhattan Quotation Telegraph Co., 50 How. Pr. 194; Tabor v. Hoffman, 118 N. Y. 30, 34; 27 St. Rep. 756; High. Inj. §§ 994, 996, 1011. Nor do we think that the selling or offering to sell the names and addresses contained in the books on envelopes sent by it to .nonsubscribers would constitute a publication, so as to destroy the plaintiff’s literary property in ■such books.

The contention that there is no competent evidence to show that the defendants have incorporated in their directory information obtained from plaintiff’s reference book is equally unfounded. The similarity of errors appearing in the two books could not be -explained upon any theory of change; and the number of such errors, coupled with evidence showing that the defendants Rothschild and TJlman had been guilty of a similar offense, as against this same plaintiff, prior to the formation of the defendant company, into which they entered as officers, if not the actual promoters and guiding spirits, amply justified the conclusion reached, —that, with respect to information which could not be obtained from Trow’s state directories, the company’s agent, Keller, directly or indirectly obtained the information from plaintiff’s reference book. In this connection, the defendants named having been shown to have been the principal incorporators of the defendant corporation, to which the business previously owned by both, and which had passed into the hands of one, was transferred, the judgment against them in the plaintiff’s previous action, brought for a •similar purpose, was admissible, if for no other reason than as showing knowledge on their part of plaintiff’s rights, and upon the question of whether or not such incorporation was resorted to with a view of avoiding the effect of the judgment in this action, which was one of the charges made in the complaint.

In regard to testimony as to the correct spelling of the names -of jewelers, such evidence, when first offered, was objected to upon the ground that the plaintiff’s book in which the names were -contained was copyrighted; and this objection, which was made, not only to such testimony, but to the plaintiff’s books themselves, was, of course, properly overruled, for the reason already stated,—that the court had jurisdiction. So the objection to what the witness said as to how one of the jewelers was doing business, if placed upon the ground of hearsay, might have been good. But the objection to such evidence was that it was immaterial, and, in view of the issues, the fact which such evidence was elicited to prove was very material. It is true that, at the close of the testimony in which instances in the state of New York were given of misspelled names, a motion was made to strike out, as hearsay, all the evidence as to what was told the witness by persons whom he saw, as to their correct names. But this motion was properly denied, and for the reason stated by the trial judge,—that no objection to the admission of such testimony was taken when offered. It will not do to take a general object which is not good, or speculate upon what a witness may testify to, and then, if not agreeable to the one against whom the testimony is given, move to strike out such testimony, or, upon appeal, seek to destroy the effect thereof by presenting specific objections, which would have been good, had they been presented at the time the testimony was taken.

The only serious question presented is whether, upon the testimony, which was amply sufficient to sustain the judgment as against the company, there was enough to support the complaint ns against the defendants Rothschild and Ulman. The court, in two of its findings, inadvertently finds that from March, 1887, until the incorporation of the defendant company, in the month of January,. 1891, these defendants were engaged in publishing a newspaper circulated in the jewelry trade and bi ndred trades, which at the latter date was transferred to the defendant corporation; also that,, between those dates, Rothschild, on behalf of himself and the defendant Ulman, employed Keller to compile the directory. -Upon these points the testimony of the defendants, which was not controverted, shows that Ulman and Rothschild were partners until the summer of 1889, when the latter became sole proprietor of theJewellers’ Weekly, and it was during this period that Keller suggested the idea of the “ Jewellers’ Weekly Complete Directory,” which was the compilation that plaintiff complained of. These-findings, however, are not of sufficient importance to justify a reversal or modification of the judgment; there being sufficient in tbe.record to show that one of them, at least, when the suggestion as to the compilation was made by Keller, frankly avowed that he did not see how it could be done without resort to plaintiff's reference book, which Keller claimed was not necessary. Yet, without any supervision or examination, he permitted him to proceed with the compilation, and adopted his work, which in part consisted of pirating information which was the property of the plaintiff ; and this compilation was adopted, printed, and used by the defendants for their own benefit, and to the detriment of the plaintiff. The argument that such testimony would bear equally against the other officers of the defendant company, and would be as good against them as against the defendants specifically enjoined,.may be true; but it would not, from this, follow that, because the plaintiff had not enjoined them, it was not entitled to relief against those whom it had. made individual parties to the action. Apart,, however, from this, we think that the prior conduct of these particular defendants, Ulman and Rothschild, the former judgment-obtained against them for a similar offense, and what seems to-have been the well-grounded view of one of them that the compilation could not be completed without resort to the plaintiff’s-book, place them in a little different position from the other officers-of the company.

Upon the whole case we think the conclusion of the trial judge-—that the plaintiff had exclusive rights of property in its book, and in its confidential sheets and their contents, and that the publication by the defendant corporation in its directory of information copied or appropriated from the plaintiff’s reference book, issued confidentially to its subscribers in July, 1890, was a violation of the plaintiff’s right of property, and tended to produce, and continued to produce, substantial injury to it, for which the plaintiff had no adequate remedy át law—was right, and justified the issuance of the injunction. As said upon the argument, exclusive of the question of costs, which, as compared with the labor and expense entailed upon the defendants by the preparation of the record and of this appeal, was not serious, we fail to see, if the defendants’ disclaimer of taking the plaintiff’s property was sincere, how they would be injured by the injunction. The reason, ■for the appeal, we think, may be furnished in the more strenuous •arguments advanced, seeking for an adjudication that would leave them free to utilize the work and business, which, at great expense, the plaintiff had created, and which adjudication, if in their favor, would result to their great advantage, and corresponding injury to the plaintiff. The judgment, which has determined that they have no such right to appropriate the plaintiff’s property, is supported, and, we think, in all respects, right, and should be affirmed, with costs.

All concur.


author: Per Curiam.

text:
    Sarah Lazarus et al., Resp’ts, v. Metropolitan Elevated Railway Company et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

    Statute—Retroactive.
    Chap. 688 of 1894, repealing § 1023, and amending § 1022 oí the Code, applies to an action submitted to a referee before, but decided after, the enactment of such statute.
    Appeal from an order, denying a motion for an order sending hack the report of the referee and directing him to rule on defendant’s proposed findings of fact and conclusions of law, and to resettle said report, or for an order vacating and setting aside said report and all proceedings had thereon.

      J. C. Thompson, for app’lts; Nelson S. Spencer, for resp’ts.
   Per Curiam.

May 27, 1893, this action was referred to a referee to hear and determine; and on March 22, 1894, it was finally submitted to him for decision, and, by written stipulations between the attorneys, his time to decide the cause was extended until October 27, 1894. On May 12, 1894, chapter 688 of the laws of that year was enacted, to take effect June 1, 1894, repealing § 1023 of the Code of Civil Procedure, which authorized either party to a litigation to request the court or referee to determine all of the issues of fact and law deemed to have been involved in the action. Section 1023 was repealed after this action was submitted to the referee, but the repeal took effect before he made his decision. The attorneys for the defendants, believing that 58 issues of fact and 22 issues of law were involved in the action, on the 22d of March, 1893, requested the referee to pass on that number of issues of fact and law. Upon the decision of the case, the referee did not note on the margin of the various propositions of fact and law how he had disposed of them, but, instead, stated concisely the facts found and ins conclusions of law, in the form prescribed by § 1022 of the Code of Civil Procedure, as amended by the third section of chapter 688 of the Laws of 1894. At the date of the decision of this case, there was no statute which required the referee to determine the various propositions of law and fact requested by either litigant, and there is no provision in the statute excepting from its operation cases pending at the time of its passage. Section 1023 did not relate to the substantive law of the state, but prescribed a rule of procedure; and it is too well settled to require the citation of authority that the practice of the court may be changed so as to affect pending actions. The referee, so far as the procedure was concerned, had the right to adopt the form of decision authorized at the time he rendered his decision. In case a statute taking effect after a cause had been submitted to a referee should require the report to be made in a particular-form, or that it should be filed within a given time, we have no doubt that it would control the practice of a case so situated. By the Code of 1848, and again by the Code of Civil Procedure, the practice of the courts was radically changed, and the new practice has been held applicable to pending cases, and that a step in procedure is to be taken according to the rule in existence when the prescribed step is taken. We think that neither party had' the right to require the referee to pass upon the requests, pursuant to the repealed section of the Code. The order should be affirmed, with $10 costs and disbursements.


author: Van Brunt, P. J. Follett, J.

text:
    Metropolitan Elevated Railway Company et al., App’lts, v. William H. Johnston, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

    1. Appeal—First instance.
    An objection to jurisdiction, on ground of adequate remedy at law taken for the first time at the trial, cannot avail, where there is nothing in the pleadings in respect thereto.
    2. Same—Appealable.
    An order, dismissing the complaint, is not appealable, but the decision can be reviewed on appeal from the judgment entered on such order.
    8. Judgment—Equitable relies.
    Where there is no allegation tending to show that a certain fact could not, by reasonable diligence, have been discovered ignorance of such fact will not furnish ground for equitable relief from a judgment.
    Appeal from an order, dismissing the complaint on the pleadings, and from a judgment entered thereon.

      J. C. Thomson, for app’lts; M. S. Thompson, for resp’t.
   Van Brunt, P. J.

It appears from the complaint herein that in 1877 the Gilbert Elevated Railway Company, now the Metropolitan Elevated Railway Company, commenced proceedings to condemn easements, which they were desirous of occupying for.the purpose of the construction of an elevated railway in the city of New York, appurtenant to certain lands in South Fifth avenue, which belonged to one Amos R. Eno, and which included a portion of the street in front of property No. 227 South Fifth avenue ; and that an award was made in such proceedings to said Eno, which was afterwards duly paid to him. It is further alleged in said complaint that the defendant in this action having acquired, through divers mesne conveyances, the title to No. 227 South Fifth avenue, in 1889, commenced an action in this court against these plaintiffs, alleging that he was the owner in fee of No. 227 South Fifth avenue, aforesaid, and of certain property rights appurtenant to said premises, including a portion of the bed of said South Fifth avenue, immediately in front of and adjoining said premises to the center of said street. This action contained the usual prayer for injunctive relief and judgment for damages. Issue was joined therein, and the same was tried, and a decision rendered awarding an injunction, unless the plaintiffs should pay the defendant $2,-500, as the value of his property rights appurtenant to No. 227 South Fifth avenue. An appeal was taken from such judgment,, and, while said appeal was pending, the parties agreed to settle by the payment of the fee and rental damages and caste. The condemnation proceedings to which Mr. Eno was a party were not pleaded by the defendants in Johnston’s action: and the settlement was made in ignorance on the part of both parties that such condemnation proceedings had ever been taken. Subsequent to such settlement, the plaintiffs, having discovered such condemnation proceedings, notified the defendant thereof, and asked restitution from him of the several sums of money paid to him as aforesaid, which restitution said Johnston wholly failed and refused to make; and judgment is demanded for various kinds of relief.

The defendant answered, denying any knowledge or information sufficient to form a brief as to many of the allegations of the complaint. admitting the proceedings in the action to which the defendant was a party, alleging the validity of the judgment, and that the plaintiffs purposely neglected, and still neglect to record conveyances of easements or easements and property rights acquired by them in the office of the register of the city and county of New York, so as to be notice to bona fide purchasers as by law required, and refused to inform the defendant in said action that they claimed to have acquired any such right in the premises. The defendants further denied any mutual mistake of fact. Upon the case coming on for trial, the court dismissed the complaint, as the judgment recites, on the pleadings and the opening of counsel ; and from the order dismissing the complaint, and the judgment-entered thereupon, this appeal is taken.

It is evident that the appeal from the order must be dismissed, with $10 costs, as there is no authority for the taking of such an appeal.

Upon the appeal from the judgment, it will be necessary to consider the disposition of the case by the court as an adjudication that the complaint did not state facts sufficient to constitute a cause of action.

It is urged that the ground upon which the court dismissed the complaint was that it contained no allegation that the plaintiffs had no adequate remedy at law; and it is claimed that the rule is well established that, if such an objection is to be insisted upon, it shall be raised by answer. For this position the plaintiff seems to have respectable authority. In the case of Ostrander v. Weber, 114 N. Y. 102 ; 22 St. Rep. 979, it is stated as a rule of law that that in an equity action, the defendant, in order to insist that an adequate remedy at law exists, must set it up in his answer, and cites as authorities the case of the Tovm of Mentz v. Cook, 108 N. Y. 504; 13 St. Rep. 845. Upon reference to this case it will be seen that it is stated that it appears to be settled by the general concurrence of authority that a defendant cannot, when sued in equity, avail himself of the defense that an adequate remedy at law exits, unless he pleads that defense in his answer. Grandin v. Le Roy, 2 Paige, 509; Le Roy v. Platt, 4 Paige, 77; Truscott v. King, 6 N. Y. 147; Cox v. James, 45 N. Y. 557; Green v. Milbank, 3 Abb. N. C. 138; and Pam v. Vilmar, 54 How. Pr. 235. An examination of these cases shows that no such rule has been laid down. In almost all the cases the question came up upon the trial, and all that was held, or was necessary to be held, was that it was too late then to take the objection. And in the case of Grandin v. Le Roy, supra, which is the original authority for all these decisions, it is held that the objection is waived, unless it is taken by demurrer or answer; that it is a question going to the jurisdiction of the court, and, unless the objection to such jurisdiction is taken by demurrer or answer, it is deemed to be waived, and such objection will not be entertained upon the trial. And that is all that it has ever been necessary to decide in any of the cases which have been cited, the language of which seems to infer, excepting the case of Green v. Milbank, that such objection can only be taken by answer. In the case last cited, the language of the court is that the objection must be taken at the earliest opportunity, and by answer. It is manifest, it being an objection to jurisdiction, appearing, if at all, upon the face of the complaint, that it may be taken as well by demurrer as by answer. Under these rules, however, this objection having been taken for the first time at the trial, it cannot avail, there being nothing in the pleadings in respect thereto.

We, then, cometo the-question as to whether the plaintiff can be relieved upon the ground of mistake. Our attention has been called to no authorities bearing directly upon the question involved. But it would seem ■ that, under the facts appearing in the case at bar, the plaintiffs are not entitled to relief, because it does not appear that the plaintiffs could not have ascertained by the use of reasonable diligence the facts which are now claimed to furnish the grounds for equitable interposition.

The rule is laid down in Snell Eq. (10th Ed.) p. 536, as follows:

“As to mistakes of fact, the general ruling that an act done or ■contract made under a mistake (i. e. in ignorance) of a material fact is relievable in equity. But, in order to obtain' such relief, the fact must be material to the act or contract; and, if the act or contract is not materially affected by it, the party claiming the relief on that immaterial ground will be denied it. But, assuming that the fact is material, then, whether the mistake is that of one party only to the contract or is the mistake of both parties, relief will be given, varying only in its nature according as the mistake is unilateral or is mutual; e, g. if a person shall sell a messuage to another, which was at the time swept away by a flood, without either party having any knowledge of the facts, equity would relieve the purchaser, upon the ground that ¡both parties intended to purchase and sell a subsisting thing, and implied its existence as the basis of their contract. And, on the same principle, a contract to purchase property which is already the purchaser’s own is relievable, and that whether the mistake is the purchaser’s only or is the mistake of both parties. But it is not sufficient, in general, to show that the fact is material; it must, in general, also be shown that the fact is one which could not by reasonable diligence have been known; for if, by reasonable diligence, the fact could have been known, equity will not relieve, since that would be to encourage culpable negligence on the part of persons whose duty it is to make all due inquiries.”

The writer then alludes to the fact that where one contracting party has knowledge of a material fact, which he does not communicate to the other, it is the rule that, in order that the latter may set aside the transaction on the ground of the other party’s withholding of that fact, the former should have been under an obligation, not merely moral, but legal or equitable, to make the discovery. So, also, where the means of information are open to both parties, and where each is presumed to exercise his own skill, intelligence, and judgment with regard to the subject-matter, and where there is no confidence reposed, but where each is dealing with the other at arm’s length,equity will not relieve. And therefore, where the fact (not being a fact amounting to the entire subject-matter of the contract) is equally unknown to both parties, or where each has an equal amount of information, or where the fact is doubtful from its own nature, in either of such cases, if the parties have acted with entire good faith, a court of equity will not intervene. The general ground upon which all these distinctions .proceed is that mistake or ignorance of fact is subject of relief only where it constitutes the material ingredient of the contract of the parties, or disappoints their intention by mutual error, or where it is inconsistent with good faith, and proceeds from a violation of the obligations which are imposed by law upon the consciences of •either party. But where each party is equally innocent, and there is no concealment of facts which the other party has a right to know, and no surprise or imposition exists, the mistake or ignorance, whether mutual or unilateral, is treated as laying no foundation for equitable interference.

The only ground, therefore, upon which, under these rules, the plaintiffs can claim relief, is that the fact which was unknown was not only material, but amounted to the entire subject-matter ■of the contract. In the case at bar it might very well be claimed that the fact did amount to the entire subject-matter of the contract, because it related to the title of the property which was the subject-matter of the settlement between the parties to this action. But even this does not authorize relief if the fact should have been discovered by reasonable diligence upon the part of the plaintiffs. There is no allegation tending to show that by reasonable diligence they could not have discovered the fact in question. Various excuses are given,—-as that the plaintiffs succeeded to the rights of other parties: that their immediate successor, through an intermediary, paid the purchase money ; and that changes in the mangagement of the elevated railroad have occurred. But it nowhere appears that any inquiry in regard to the title of this property was made upon the part of the plaintiffs, or any attempt toase ertain its previous history, or whether it had been acquired or not. Certainly, the taking of no steps to ascertain as to the validity of the title of the defendant is not using reasonable diligence. It seems to us, therefore, that upon this ground the judgment was correct, and that the same should be affirmed with costs.

Follett, J.

I concur in the opinion of the presiding justice,, except that part which discusses the rule governing the necessity of pleading the defense of the existence of an adequate remedy at law. That question does not seem to be involved in this case. In case the relief sought may be granted on a motion or by an action, it is within the discretion of the court to refuse to settle the rights of the litigants on a motion; and compel the moving paity to seek relief in an action. Hill v. Hermans, 59 N. Y. 896; Montrait v. Hutchins, 49 How. Pr. 105. This is frequently done when the right of the moving party to the relief sought depends upon the determination of an issue of fact. When there is a sharp controversy over a material issue of fact, it can usually be more satisfactorily settled by hearing the witnesses examined and cross-examined than by reading their affidavits. But there is nothing in the record before us which indicates that the' court-dismissed the complaint on the ground that the plaintiffs should have sought their relief by motion. The practice before referred to has no relation to the rule that a defendant in an equitable action cannot avail himself of the defense that the plaintiff has an adequate remedy at law, unless it is pleaded in the answer, when he answers, which seems to be well established by the cases cited in Tucker v. Manhattan Railway Co., 78 Hun, 489; 61 St. Rep. 644, in which this court recognized and applied the rule. Such is the rule in other jurisdictions. 1 Daniell, Ch. PI. & Prac. (6th Am. Ed.) 549, 556, 624, 680, and cases there cited; Story Eq. PI. (10th Ed.) § 473, and cases cited; Mitf. Ch. PL. (6th Am. Ed.) 263; Brown v. Iron Co., 134 U. S. 530, 536.This rule simply prevents the defendant from availing himself, as-a matter of right, of the existence of the defense that the plaintiff" has an adequate remedy at law. When the defendant has failed to interpose this defense, and the trial court refuses to dismiss the appeal on that ground, the refusal cannot be urged by the defendant as error on appeal. But the trial court may, in its discretion dismiss an equitable action on the ground that the plain,tiff has an adequate remedy at law, though the defendant failed to-interpose that defense; but since legal and equitable remedies have been administered in the same court, this discretion has seldom been exercised. In case it appears on the face of the bill or complaint that the plaintiff has an adequate remedy at law, the objection may be raised by demurrer; but in the cases referred to the defendants answered, and failed to raise the objection in their answers. It is not held in these cases that the defense that there is an adequate legal remedy may not be raised by demurrer when the defect appears on the face of the complaint or bill. Parker, J., concurs.


text:
    Charles Bell, as Committee, etc., App’lt, v. Eberle E. Smith et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    Contbacts—Validity—Competency.
    A man, though old and feeble, is perfectly competent to do business, if he has a clear appreciation of the particular business in which he is engaged, of the relation it bears to his fortune, of the expediency or inexpediency of it, and if he is able to judge rationally as to the reasonableness of the particular transaction.
    Appeal from a judgment in favor of defendants.
    The opinion of Mr. Justice Rumsey at special term is as follows:
    This is one of those unfortunate litigations - which not infrequently ai’ise between children of very old people, who are anxious to divide the property without waiting for the death of their parents. The facts, which are entirely undisputed, are that Morgan Smith and his wife were the parents of one Josephine Pulver and Bberle B. Smith, the defendant. Mr. Morgan Smith was about 81 years old, and his wife was some years older. For some time the two had been living at the house of Mrs. Pulver, and had received from her such care and attention as was satisfactory to them. Mr. Morgan Smith was the owner of about $5,-400 of personal property, including the bond and mortgage in question, which, with interest, amounted on the ninth day of June to about $2,700. Shortly before the 9th of June, 1892, there had been some sort of a settlement between Pulver and Morgan Smith, and Mr. -Smith had learnd that Pulver intended to charge him what he believed to be an exorbitant price for the board and lodging which h.e and his wife received, and he found that Pulver claimed that Smith was then indebted to him in the sum of about $1,800 for board already had. It appeared that he was exceedingly dissatisfied with this condition of affairs. There is no doubt that at this time Pulver and Mrs. Pulver both supposed that he was perfectly competent to do business. He knew how much he had, and they evidently supposed that he was in a ■fit mental condition to settle their account, and to pay them the sum of $1,800, or thereabouts, for the board which he had had up to that time. It is clear that he was then sufficiently able to do business to appreciate the fact that his fortune was not enough to enable him to pay for his board at the rate at which he was then charged, and to understand that common prudence required that he should make some other arrangements in regard to his support, lest the fortune which he had would not be sufficient to provide for him and his wife during their life. At this time he went to the house of his son, Bberle, the defendant. Bberle, it seems was a well to do farmer, who lived upon the farm which Morgan Smith had occupied for many years. Morgan Smith and his wife had some sort of a life estate in that farm, or in a portion of it. Bberle Smith and his wife had given to Morgan Smith a bond to secure the payment of $2,500, secured by a mortgage on the farm on which he lived. Upon this bond there was due something over one year’s interest. While Morgan Smith was at his son’s house, an agreement was made between them, by which Morgan Smith discharged and satisfied the bond and mortgage, and Eberle Smith and his wife agreed to give to Morgan Smith and his wife a home at their house, and to clothe and care for them, during their life, and, in case Morgan Smith and his wife desired to live elsewhere, to pay $300 a year during the life of Morgan Smith, and $150 a year to Mrs. Smith in case she survived her husband. This action is brought to set aside and cancel this discharge, and the sole question is whether or not Morgan Smith, at the time he made this paper, was of sound mind, and competent to make a contract of this kind, or whether he had become, by reason of his age, incompetent to make such a contract.
    It may be premised that such a contract is not unusual. Whatever may be thought of the expediency of such a contract generally, it cannot be said to have been an inexpedient contract to make in this instance. Eberle Smith was an only son. He was, so far as appears, on the best possible terms with his father, and there is nothin» to show that there had ever been any difficulty or unkindness between them. Mr. Smith, his father, had, as he supposed, grave reason to be displeased with the conduct of Pulver towards him. Of his whole fortune at that time almost $2,000 had already been absorbed by the charges which Pulver made, and which, it seems, he had not supposed would be so large. These charges would reduce his estate from $5,400 down to about $3,600, and it is' quite clear that the interest on that $3,600 would not be sufficient to pay the bill which Pulver had advised him he intended to charge, being $7 a week for the board and lodging of the two. It was apparent that at this rate he would be obliged each year to break into his capital seriously, and that the small fortune which he possessed would be soon exhausted. In that state of affairs, it surely cannot be said to be unreasonable that he desired to make some other arrangement for his support, and the arrangement which he did make, by which he provided for the maintenance of himself and his wife, including their clothing and all their expenses, at the house of his only son, at a cost of the interest on a $2,500 mortgage, was a very profitable bargain. It is noticeable that he procured by this bargain what Pulver had been charging him seven dollars 'a week for. Was he, then, competent at this time to make this bargain ? The question is not whether he was competent on the 23d of August to make this bargain, but whether he was competent to make it on the 9th of June. It'may be conceded that, because the relation of father and son existed between Morgan Smith and Eberle, the presumption is that the bargain was not a valid one, Boyd v. De La Mbntagnie, 73 N. Y. 498, and that the defendant is bound by the burden of the proof to overturn this presumption. As we have seen, the transaction was not an unreasonable one in itself. The evidence shows that at the time it was made Morgan Smith consulted with his brother, a business man, in whom he had great confidence. The brother says that at this time Morgan understood what property he had, and produced it, and counted it, and it was figured up. He spoke of the debt to Pulver, from which it appears that he was perfectly cognizant of what was owing in that place. It appears that he talked over the terms of this contract with his brother, and advised the brother what, he wanted put into it, and after the contract was written he read it over, and appreciated the contents, and said it was all right. It appears that he suggested the agreement himself, and gave as reasons that his expense at Pulver’s was too much, and that he wanted to secure a home while he had something to do it with. When the amount of money to be paid in case he left Bberle’s house was spoken of, he said he wanted it made large enough to secure to himself and his wife a home. He knew, at that time, that he had no debts, except the debt to Pulver, and he knew its amount. That testimony shows that at the time he made this contract he was in the full possession of his faculties, quite as much so as any man of his age could be expected to be. It appears from the testimony of the defendants’ witnesses that while he was there at Bberle’s and afterwards, even down to the time when this inquisition was had, he was intelligent and bright, and that there was no serious failure of his mental faculties. These persons tell of interviews with him, in which he talked of his business, and showed a clear appreciation of his financial condition. It appears that in August, 1892, when Mrs. Pulver was taking him from Bberle’s to her home, he met Judge Strouble, with whom he had a conversation, and that he at that time had a clear recollection of things that had occurred, and was bright and intelligent. The evidence of other witnesses who saw him from time to time when he was at Eberle’s shows that he recollected his friends, he knew their ages and conditions, he knew their families and inquired about them, and talked with visitors intelligently upon the usual topics of the day. It is very clear that he knew all about his own family, and that he had an exceedingly clear appreciation of his financial condition, and was perfectly aware what he wanted to accomplish by this bargain. The evidence of the plaintiff’s witnesses shows that he was a feeble old man ; and undoubtedly he was not as bright or intelligent, nor was his mind as active, as in his younger days. But it is not expected that a man of his age will retain his faculties to their full perfection. The law does not require that to make him competent to do business. A man is perfectly competent to do business if he has a clear appreciation of the particular business in which he is engaged, of the relation it bears to his fortune, of the expediency or inexpediency of it, and if he is able to judge rationally as to the reasonableness of the particular transaction. All this Morgan Smith was able to do. In addition to this he knew clearly all about his own family, and the necessities of his financial condition ; and he had sound reasons, which he gave, for making the bargain which he did. It would be very serious if the law should say that whenever the faculties of a man began to fail because of his age it should be reason sufficient for taking from him the right to control his property. The power of such control is of great use to many old men, to insure to them proper and courteous treatment from their families. It has been the experience of many lawyers that, so soon as a man became old and infirm, he ceased to receive from his children that respect and care which, in his prime, he was enabled to command; and that, but for the hopes of. the favors which they might obtain from him, he would be left to charity for that care which his age and necessities demanded. Because of that, it was said by Chancellor Kent that the law would go a great way in assuring to old men the right to manage their fortunes, although their bodies and their minds might have become enfeebled with age. But, without laying any stress upon these considerations, it is sufficient to say that upon the testimony this man thoroughly understood the bargain which he made with his son ; that it was a reasonable bargain to make ; that it assured him a comfortable home or sufficient maintenance if he thought fit to go elsewhere ; and that he was possessed of sufficient mind to enable him to make it.

      M. A. Leary, for app’lt; W. T. Morris and John Gillette, for resp’t.
   Per Curiam.

Judgment appealed from affirmed, with costs, on the opinion of Rumsey, J., at special term.

All concur.


author: Bischoff, J.

text:
    William R. Robinson, App’lt, v. H. Edward Ficken, Resp’t.

      (New York Common Pleas, General Term,

      Filed January 7, 1895.)

    Judgment—Addegata et peobata.
    A judgment, Based upon a speculative method of computation, is not allegata et probata.

    Appeal from a judgment in favor of plaintiff, rendered by the justice without a jury.

      Phillips & Avery, for app’lt; Walter M. Menzel, for resp’t.
   Bischoff, J.

This is an action for goods sold and delivered by plaintiff’s assignor to the defendant. The amount claimed by the plaintiff, $249.62, was admitted to correctly represent the value of the goods, and the trial proceeded upon the separate defense set up by the defendant that at the time of the sale an agreement had been entered into whereby payment for the goods in question was to be made by setting off against their value the amount of certain commissions to be earned by the defendant in influencing trade to Moore, plaintiff’s assignor. Upon the trial there was a conflict between the testimony of Ficken and that of Moore regarding the terms of this agreement, but, according to the respondent, the-se terms were that 15 per cent of the amounts charged by Moore for goods sold at the defendant’s recommendation should be allowed for commissions, and in support of his offset as claimed defendant gave testimony as to the amount of goods thus sold through his influence; the total value of these goods at Moores’ catalogue prices aggregating $2,115. Moore testified that there was a trade discount allowed to purchasers of these goods of “from 20 to 50 per cent,” but no further particulars as to this discount, and in what cases it was actually allowed to the purchasers, were given. Judgment was rendered in favor of the plaintiff for $29.12, an offset of $220.50 being thus allowed to the defendant. The evidence fails to disclose any basis upon which this result -could be obtained, unless we "assume that some items of the defendant’s claim were arbitrarily disallowed, while his statement in the main was credited by the justice; or that some discount of more than 20 and less than 50 per cent, was taken from the list prices of the total amount of trade claimed to have been secured to Moore by defendant. A judgment based upon any such speculative method of computation cannot be said to be secundum allegata ei probata, F-uld v. Kahn, 4 Misc. 600 ; 54 St. Rep. 134, and is not, therefore, to be supported. Judgment reversed, and new trial ordered, with costs to abide the event.


author: Daly, C. J.

text:
    Health Department of the City of New York, v. Rector, Churchwardens and Vestrymen of Trinity Church.

      (New York Common Pleas, General Term,

      Filed January 15, 1895.)

    Appeal—Amendment.
    The general term of the court of common pleas has power to amend an order of a prior general term, granting leave to appeal to the court of appeals, by inserting therein the ground on which it was made.
    Application to amend an order granting leave to appeal.

      S. T. Nash, for pl’ff; W. P. Prentice, for def’ts.
   Daly, C. J.

This is an application to the general term (January, 1895) to amend a prior order of the general term (March 7,1892). An order having been made by the general term in March, 1892, permitting an appeal from its decision to the court of appeals (the .action having been commenced in a district court), it is now asked that the general term amend such order by inserting therein the ground upon which it was made, viz. that a question of law is involved, which ought to be reviewed by the court of appeals. Such a statement in the order, where the amount of the matter in controversy, as in this case, does not exceed $500, is required, in order to authorize an appeal to the court of appeals. Laws 1874, c. 322; Squire v. McDonald, 138 N. Y. 554; 53 St. Rep. 269; Bastable v. City of Syracuse, 72 N. Y. 64. The application for the amendment, is opposed on the ground that we have no jurisdiction to make the amendment, and De Freest v. City of Troy, 34 Hun, 580; Van Horne v. Campbell, 101 N. Y. 608,—are cited as authority. The last-named case holds that the power to allow an appeal to the court of appeals can only be exercised by the general term which rendered the decision, or by the next general term held after judgment thereon has been entered. The case has no bearing upon the question of amending an order whereby permission to appeal to the court of appeals was heretofore and seasonably granted. The -court possesses unrestricted power, at all times, to make the record declare the truth as to its judgment. National City Bank v. New York Cold Exch. Bank, 97 N. Y. 645. In that case it was held that the general term had power to amend its order after an appeal had been taken therefrom to the court of appeals, by adding a statement that the reversal was upon the facts as well as the law, although the effect was to give the respondent a better position in the court of appeals; following Guernsey v. Miller, 80 N. Y. 181, and Buckingham v. Dickinson, 54 N. Y. 682. If the decision appealed from could be amended after appeal, the decision upon the application for leave to appeal is equally amendable. The amendment allowed in the cases cited is more radical than that which is now. applied for, and the decisions amply justify the relief asked. Motion granted, without costs.

All concur.


text:
    Wallace, Muller & Co., Limited, Pl’ff, v. Napoleon Valentine et al., Def’ts.

      (New York Common Pleas, Special Term,

      Filed January, 1895.)

    Sale—Exeoutoby.
    On an executory contract of sale, a warranty does not survive an acceptance of the goods with knowledge of all the facts, and the vendee cannot, in an action for the price, set up a counterclaim for a breach thereof, though he protested to the vendor at the time of the acceptance that the shipments, made by the latter, were in violation of the contract.
    Demurrer, in an action to recover the price of goods sold, to a counterclaim set up in the answer.

      Eugene Frayer, for pl’ff; Titus & Dowling, for def’ts.
   Daly, C. J.

The action was brought to recover $10,500, the purchase price of 5,000 bags of Egyptian onions, sold and delivered under the following contract:

“New York, May 8th, 1894.
“Sold for account of Messrs. Wallace, Muller & Co., to Messrs. N. & D. H. Valentine. About five thousand bags (5,000), of not more than 112 lbs. each, Egyptian onions, at two dollars- and seven cents ($2.07) per cwt., gross weight, ex pier port of New York. Terms, thirty days’ note, or less one per cent, for cash, buyer’s option. To be shipped from Alexandria, Egypt, to Liverpool, per steamer or steamers sailing on or about May 12th next, and from there to be forwarded per mail steamer or steamers to New York. The onions to be fair, average quality of this-season crop. Customhouse or city weigher’s weight; sellers! option. The goods to be delivered m good condition.
“ JosiaetRich, Broker.
“ Accepted. N. & D. H. Valentine.” '

The defendants admit the contract, but counterclaim $12,500 damages for breach thereof, setting up that the plaintiff failed to ship onions from Alexandria until May 24th. although there were steamers leaving said port between May 8th and May 24th, by which the onions might have- been shipped, in accordance with the contract; also that the onions were not shipped by mail steamer from Liverpool, but by a freight steamer, although there were mail steamers leaving said port, by which they might have been shipped, so that' the onions, instead of arriving at New York on or about June 7, 1894, as plaintiff’s agent represented they would, and on or about which date they would have arrived if the contract had been performed, did not arrive until June 26th, by which time their market value had been depreciated; that when said onions arrived they were tendered to the defendants, who accepted the same under protest and without prejudice, and so notified the-plaintiff, protesting against the shipment thereof having been made-from Alexandria by steamer sailing May 24, 1894, and against, shipment being made from Liverpool by freight steamer instead of by mail steamer; that the defendants subsequently tendered to-the plaintiff notes in payment for said goods consistent with and subject to said protest, which plaintiff refused to receive ; and that, by reason of the premises defendants have been damaged in the sum $12,500. To this counterclaim the plaintiff demurs, on the ground that the facts do not constitute a cause of action; its contention being that no claim for damages survived the acceptance and use of the goods by defendants, with full knowledge of the facts, although the goods did not in all respects answer the description of the contract. This position is well taken. The contract of sale was executory, and there was no warranty which survived acceptance of the goods with knowledge of all the facts. The time, place, and manner of shipment set forth in the contract were part of the description of the goods, and a material element in the identification of the property. The tender of goods so-shipped was a condition precedent, which the vendor was bound to perform before the vendee was bound to accept; and the latter might refuse to receive goods shipped at any other time or place, or in any other manner. This is settled by many authorities. “ There is first mentioned the thing that is sold ; not iron simply, but ‘ No. 1 Eglinton Scotch pig iron, per shipment by sail in December, 1879, or January, 1880.’ I do not see that one word of this description can be omitted. * * * Iron shipped in February is not within the option.” Hill v. Blake, 97 N. Y. 216-220. “ It. is a settled rule that in a case like the present the date of the shipment is a material element in the identification of the property.” Clark v. Fey, 121 N. Y. 470, 474; 31 St. Rep. 424. See, also, Tobias v. Lissberger, 105 N. Y. 404; 8 St. Rep. 43 ; Filley v. Pope, 115 U. S. 213; Bowes v. Shand, 2 App. Cas. 455. If at the time of delivery it was not known or apparent that the goods were not shipped according to contract, the description might operate as a warranty surviving acceptance under such delivery, so as to entitle the vendee to return the goods after a reasonable time and opportunity for ascertainment of the facts. But in this case it. appears from the allegations of the counterclaim that defendants, knew at the time of acceptance that the goods were different from those described in the contract. If there had been an independent collateral warranty with the executory contract of sale, the right to claim damages would have survived acceptance of the goods tendered. Brigg v. Hilton, 11 Daly, 335,. 341, affirmed 99 N. Y. 517; Day v. Pool, 52 N. Y. 416 Fairhank Canning Co. v. Metzger, 118 N Y. 260; 28 St. Rep. 775. But there was no such warranty in this case. There was no warranty except that which was implied in the sale itself, and there was no independent or collateral agreement of warranty. Upon a sale of goods not yet set apart or otherwise identified but by description in an executory contract of sale without such warranty, acceptance is a waiver of the condition precedent to be performed by the vendor, and an acknowledgment of performance of ■the contract. In Coplay Iron Co. v. Pope, 108 N. Y. 236 ; 13 St. Rep. 480, was a sale and agreement to deliver No. 1 extra foundry pig iron of the Coplay Iron Company, Limited, and a counterclaim that the iron delivered was not No 1 extra iron, but a grade •of iron of inferior quality, which the purchaser, however, retained, and never offered to return. It was held that there was no -collateral warranty or agreement as to the quality of the iron that; the representation as to the kind and quality of the iron was part of the contract of sale itself, descriptive simply of the article to be delivered in the future; that the vendees, by acceptance without ■offer to return, must be conclusively presumed to have acquiesced in the quality of the iron, and such acceptance deprived them of any right to make complaints; citing Hargous v. Stone, 5 N. Y. 73 ; Reed v. Randall, 29 N. Y. 358 ; McCormick v. Sarson, 45 N Y. 265; Duchess Company v. Harding, 49 N. Y. 323 ; Gaylord M. Co. v. Allen, 53 N. Y. 515.

The effect of defendants’ acceptance of the goods was not altered by their protesting to plaintiff against the shipments as made by the latter in violation of the contract. Where a picture was purchased from a specimen exhibited, and at the time of delivery objection was made by the purchaser on the ground of inferior execution, but without offer to return, the court held that, “ having received it under a specific contract, he must either abide by it •or rescind it in toto by returning the thing sold ; but he cannot keep the article received under such a specific contract, and for a •certain price, and pay for it at less price than that charged by the contract.” Grimaldi v. White, 4 Esp. 95, cited in Reed v. Randall, 29 N. Y. 358, 365. Where oil cake was sold and shipped, which" defendant considered did not answer the sample, and which he stored, notifying plaintiffs to take it back, but, after further negotiations, he notified them that he would sell, and apply in reduction of his damages, and afterwards sold according to notice in his own name, it was held that he had adopted the goods as his own, and therefore retained no right of set-off against the price. Lord Abinger said:

“We must judge of men’s intentions by their acts, and not by •expressions in letters which are contrary to their acts. If the defendant intended to renounce the contract, he ought to have given the plaintiffs distinct notice at once that he repudiated the goods, .and that on such a day he would sell them by such a person for the benefit of the plaintiffs. The plaintiffs could then have called upon the auctioneer for the proceeds of the sale. Instead of taking this course( the defendant has exposed himself to the imputation of playing fast and loose; declaring in his letters that he will not accept the goods, but at the same time preventing the plaintiffs from dealing with them as theirs. The safest conclusion, I think, for the jury to arrive at was that the defendant, having once adopted the goods as his own, had no longer any power to repudiate them, and therefore retained no right of set-off against the price.” Chapman v. Morton, 11 Mees. & W. 534.

The decision in Fuller v. Kemp, 138 N. Y. 231 ; 52 St. Rep. 342, though a very different ease from the present, well illustrates the principle that no words of protest or disclaimer will affect the legal quality of the act. In the present case, notwithstanding the defendants’ protest that the goods were not according to contract, they retained them, and thereby adopted them as their own, which affirmed the sale, the title not passing under an executory contract of this nature until delivery and acceptance. As there was no •collateral warranty which survived acceptance of the goods, no right of counterclaim for damages on the part of the vendees remained. Demurrer to counterclaim sustained, with costs.


text:
    Lydia A. Strong, Resp’t, v. Union Transfer and Storage Company, App’lt.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    1. Bailment—Delivery.
    The evidence was held insufficient to prove delivery of a trunk to defendant, in order to charge it as bailee with its loss.
    8. Evidence—Declarations.
    The declarations of defendant’s agent, nine months after the alleged delivery, in regard to the matter of delivery, are inadmissible.
    Appeal from a judgment in favor of plaintiff, rendered by the justice without a jury.

      Henry C. Andrews, for app’lt; E. C. Duvall, for resp’t.
   Bischoff, J.

This action was brought to recover for the loss of a trunk alleged to have been intrusted to the custody of the defendant by the plaintiff. To prove delivery of the property to the defendant, plaintiff called one MacMichael, an expressman, who testified to its receipt by him, and that he forwarded it to the defendant’s warerooms by his servant, Collins. Collins testified that he left the trunk at defendant’s warehouse, but was unable to say that he had delivered it at any particular door, or had not actually left it on the street. Further, he did not recollect whether he had called the attention of any of the defendant’s employes to the property. No receipt was taken upon this alleged delivery, and no contract with regard to the storage of the trunk was proven. This evidence was certainly insufficient to prove a delivery for the purpose of charging defendant upon its failure to return the chattel at plaintiff’s demand. Story, Bailm. [9th Ed.] §.297; Grosvenor v. N. Y. C. Railroad Co., 39 N. Y. 34; but it was sought further to prove an admission upon the part of defendant’s agent, Jones, that a delivery had in fact been made by introducing the testimony of the plaintiff with regard to statements made to her by Jones in the course of a conversation had between them nine months after the delivery was claimed to have taken place. This testimony was received, under objection to its competency as hearsay, and exception. The statements alleged to have been made were that “a trunk had been brough by MacMiehael“no doubt, the trunk was mine, but it had been given to another party and she further testified, “His description led me to believe that it was my trunk.” Whatever value as proof of an admission by the individual making them may have been attributable to these statements, they were improperly admitted for the purpose of binding the defendant, being in no way connected with the res gestae, and. the objection to the testimony as hearsay was well taken. Green v. N.Y. C. Railroad Co., 12 Abb. Pr. (N. S.) 480; Thallhimer v. Brinckerhoff, 4 Wend. 394 ; Anderson v. R., W. & O. Railroad Co., 54 N. Y. 834, 340. Failing sufficient evidence of a delivery of the chattel, and for the errors noted, a new trial of the cause should result. Judgment reversed, and new trial ordered, costs to abide event.


text:
    Zadi L. Requa, Resp’t, v. Domestic Publishing Company, App’lt.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    1. Landlord and tenant—Surrender.
    A surrender, such as will terminate the lease and the obligations of the-parties thereunder may be by agreement, express or implied, or by operation of law.
    2. Same.
    The facts must suffice to establish an acceptance by the landlord, or am intent on his part to terminate the tenancy.
    Appeal from a judgment in favor of plaintiff, rendered by the justice without a jury.

      Henry B. Kinghorn, for app’lt; Louis H. Hahlo, for resp’t.
   Bischoff, J.

This action was brought to recover rent due for one month under a year’s lease to the defendant of a portion of the-plaintiff’s store and show window. The defendant removed from the premises prior to the time when the rent sued for accrued, and upon this appeal but one point is presented, namely, whether the-evidence did not establish a surrender and acceptance of the premises, and a consequent termination of defendant’s liability under the lease. From the evidence given on behalf of the plaintiff it appears that, after the defendant had vacated the premises, the shelving and counter space reserved for its use was not occupied, but was merely covered with curtains and cloths, in order that the bare appearance presented should be in some degree avoided, and the floor space in the show window alone was used by the plaintiff, but not in such a manner as to interfere with the use to which it was put by the defendant, which was for the exhibition of a draped wax figure. Certainly no intention to resume possession of that portion of the premises which was leased to the defendant, is to be gathered from the case as presented by the plaintiff, non can the acceptance of a surrender be legally implied therefrom; .and, while the defendant’s evidence presents a conflict upon this question of occupancy, the plaintiff’s proofs were not overborne in any such degree as would authorize a reversal of the judgment as against the weight of the evidence. A surrender such as will terminate the lease and the obligations of the parties thereunder may be by agreement, express or implied, or by operation of law (12 Am, & Eng. Eric. Law, pp. 758h 758j, and cases cited), but in any case the facts must suffice to establish an acceptance by the landlord, or an intent upon his part to terminate the tenancy, citation, supra, Thomas v. Nelson, 69 N. Y. 118; Coe v. Hobby, 72 N. Y. 146; Auer v. Penn, 99 Pa. St. 870. Crediting the testimony of the plaintiff, the justice rendered judgment upon a state of facts which furnished proper foundation for a finding that no acceptance of the defendant’s renunciation of its tenancy had resulted, and that an intent, express or implied, to terminate the existing relation had not been shown. Judgment affirmed, with costs.

All concur.


author: Follett, J.

text:
    John Dohn, App’lt, v. John Dawson et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

      ■ Negligence—Presumption.
    In case a wall of masonry for a building is being constructed contiguous to the sidewalk of a public street in a large city, and it is proved that material falls therefrom or from a scaffold and injures one lawfully on the sidewalk, coupled with proof that the sidewalk was not covered with platforms, barricaded or in any wise guarded, it is sufficient to raise a presumption that the builder was negligent.
    Appeal from a judgment, dismissing the complaint
    This action was brought to recover damages for a personal injury, caused, it is alleged, by the negligence of the defendants and of their employes. In May, 1892, the new criminal court building was being erected for the city of New York on the block bounded north by White street, east by Center street, south by Franklin street, and west by Elm street. The defendants, as partners under the firm name of Dawson & Archer, were in that month engaged in constructing the masonry of said building, under a contract with the city. The plaintiff wás an employe of Healy A Earl, a firm which furnished the terra cotta for the building. Whether they furnished it under a contract with the city, or under a contract with Dawson & Archer, does not appear. On May 8, 1892, the exterior walls of the building had been constructed to a point about 10 feet above the second story, in which walls were open spaces for windows. Inside of the walls were scaffolds erected by the defendants for their workmen. On the date mentioned two of the defendants’ employes, John Connelly and Peter Judge, were engaged in removing bricks from a lower to an upper platform of the scaffold on the inside of the Franklin street wall. The upper platform was about 4 feet above the lower one, and crossed an opening for a window on Franklin street, which opening was 10 or 15 feet east of the corner formed by the intersection of Elm and Franklin streets. At this time there was no scaffold outside of the exterior wall on Franklin street. ■ On May 3d the plaintiff was unloading terra cotta from a truck belonging toHealy and Earl, which stood in Franklin street near the corner of Elm, and nearly under the window opening mentioned, and underneath the place where Connelly and Judge were moving bricks. The truck was backed up to the curb of Franklin street, and as the last piece of terra cotta was taken from it the plaintiff stepped from the truck to the sidewalk," and was immediately struck on his head by a brick, and injured. The foregoing facts were not disputed on the trial, and at the close of the plaintiff’s case he was nonsuited.

      Edward J. MecGuire, for app’lt; Charles N. Earle, for resp’ts.
   Follett, J.

The evidence was quite sufficient to have authorized the jury to find that the plaintiff was injured by a brick which fell from defendants’ scaffold. Connelly, one of defendants’ servants, who was engaged at the time in removing bricks from the lower to the upper platform of the scaffold, testified :

“ Q. Do you remember how the accident happened to Mr. Dohn? A. I remember that there was a brick rolled off somewhere or another, but I can’t say whether it came off the scaffold, or where it came off to be certain, but the brick rolled off, and we looked through the window, and I saw a man had his hand on his head. At the time I did not know who it was. * * * Q. How did this brick escape? A. 1 can’t tell you. Q. Did it escape' from your hand ? A. Ho; it did not escape from my hand, as I remember of. I was upon the scaffold, and it was all right, that I could see, and it may have dropped from the pile of bricks up above. There was naturally a few bricks one side, and you couldn’t very well see where you are putting them; and it may have rolled off that heap, and out of my hand. I can’t tell. Q. Did you hear a brick clattering down the side of the building ? A. Yes; we heard it rattling somewhere. I couldn’t see. Q. Was there any one else on the platform, and who was he ? A. Peter Judge. Q. Was there any one else but you two there? A. Ho; notas I can recollect. Q. Was there nobody else handling brick except yourself? A. Ho; but myself and this other man. Q. When you heard the brick clattering down the side of the building, did you hear it strike the window sill? A. I heard it strike against something, but I cannot tell what it was. Q. And did you then run to see whether you had caused any damage? A. I had just about three feet to go to look outside, and I could not see whether the brick dropped or not, but I saw a man had his hand on his head, and I thought from that there was somebody hurt. Q. (indicating). Do you identify this as the man who was struck? A. Yes. Q. The plaintiff, Mr. Dohn ? A. Yes.”

. Grarrity testified that he saw the brick fall from above, and strike the plaintiff. He said he did not see the brick at the moment it hit the plaintiff, but saw it -before it struck the sidewalk, and picked it up. There is other evidence corroborating Connelly and Grarrity which renders it highly probable, if not certain, that the plaintiff was injured by a brick which fell from defendants’ scaffold, and through the opening for a window.

The next question presented is, was there sufficient evidence of. want of care by defendants to sustain a finding that the brick fell by reason of their negligence ? The principal grounds for imputing negligence to them are : (1) Their failure to maintain scaffolding or platforms outside of the exterior wall of the building on. Franklin street, or other guards, so as to protect persons lawfully on the sidewalk from being injured by falling material; (2) in removing bricks in the manner described from the lower to the upper platform, without closing the opening for a window so as. to prevent the bricks from falling through the opening and into the street. In case a wall of masonry for a building is being constructed contiguous to the sidewalk óf a public street in a large city, and it is proved that material falls therefrom or from a scaffold and injures one lawfully on the sidewalk, coupled with proof that the sidewalk was not covered with platforms, barricaded, or in any wise guarded, it is sufficient to raise a presumption that the builder was negligent. Jager v. Adams, 123 Mass. 26 ; Clare v. National City Bank, 1 Sweeney, 589 ; Eccles v. Darragh, 48 Super. Ct. 528; 2 Shear. & R. Meg. (4th Ed.) 361; 1 Thomp. Meg. p. 347, § 10; Cooley, Torts, 607; Bish. Noncont. Law, 440; Elliott, Roads & S. 546. In Pearson v. Cox, 2 C. P. Div. 369, and Vanderpool v. Husson, 28 Barb. 196, the defendants were held not liable for the falling of material, but it was upon the ground that the workmen who were negligent were the employes of a subcontractor, and not of the defendants. It was assumed in both cases that, if the master of the workmen had been sued, he would have been liable. The rule above declared is necessary for the protection of those having occasion to use the sidewalks of public streets. The evidence as to how the accident occurred is most usually wholly within the knowledge of the builder or of his employes, and the person injured has no means of proving precisely how or why the accident occurred. The first warning of danger that he has is his injury, and then he has no opportunity to investigate the cause. It is not asserted that the plaintiff, by his own negligence, contributed to the injury.

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

All concur.