text:
    George W. Copley and Ellen Dolen. Resp’ts, v. Amelia C. Hay, Impl’d, App'lt.

      (New York Common Pleas,

      General Term,

      Filed January 5, 1891.)

    I. Mechanics’ lien—Foreclosure—Parties.
    Where a bond has been filed to discharge a lien as provided by sub. 6 of §24 of the act of 1885, an action cannot be maintained against the owner and the property for the foreclosure of the lien. The provision of the statute requiring the bond to be conditioned for payment “ of any judgment which may be rendered against the property” is satisfied by requiring the lienor, in an action on the bond, to show that but for the filing thereof he would have been entitled to a judgment against the property.
    2. Same—Discharge.
    The mere filing of a bond does not discharge the lien. The amount of the bond must be fixed by the court, the sureties must justify, and the court on approval must make an order discharging the lien. Until such order is made the lien is not discharged.
    - Appeal by the defendant, Amelia C. Hay, from an order overruling her demurrer to the plaintiff’s complaint and directing judgment thereon, with costs, and from an order denying her motion to resettle the judgment entered.

      W. H. Arnoux and Edward Marshall Grout, for app’lt; Oliver S. Ackley and Wm. A. Crowe, for resp’ts.
   Daly, Ch. J.

This is an action to foreclose a mechanics’ lien, -filed on December 8,1888, against the defendant, Amelia 0. Hay, as owner, Mull & Fromer, contractors, and Bowers & Vreeland, subcontractors, by the plaintiffs who i'urnished materials to Bowers &. Vreeland for the carpenter work upon the premises in question. The complaint alleges the facts necessary iú an action to foreclose a mechanics’ lien under the act of 1885 (chap. 342), and alleges, in addition, that on January 11, 1889, the defendant Mull filed his bond for twice the amount of the plaintiffs' claim or lien herein in the clerk’s office of the city and county of Mew York. Mrs. Hay, the owner, is made a party defendant, and it is demanded that it be adjudged that plaintiffs acquire a valid lien upon the premises, and have a lien on said bond, and that defendants and all persons claiming under them be foreclosed and the premises be sold, and the plaintiffs be paid the amount of their lien from the proceeds. 'x

Mrs. Hay, the owner of the premises, demurs to the complaint on the ground that it fails to state facts sufficient to constitute a cause of action against her. Her demurrer was overruled. She appeals, and both sides have argued the case as one presenting for decision the question whether, when a bond is filed to discharge a mechanic’s lien, as provided by subd. 6, g 24 of the act, an action of this character can be maintained and the owner of the premises made a party defendant and judgment of foreclosure and sale be demanded and rendered. As this question may have to be ultimately decided in the case it may be examined now.

The mechanics’ lien act provides as follows:

“ Sec. 24. A lien may be discharged as follows: * * * 6. By the owner of the premises, person or persons, firm or firms, corporation or corporations, against whom or which the notice of lien is filed, executing with two or more sufficient sureties, who shall be freeholders, a bond to the clerk of the county where the premises are situated, in such sum as the court may direct, not less than the amount claimed in said notice, conditioned for the payment of any judgment which may be rendered against the property. The sureties on said bond must justify in at least double the sum named in said bond. A copy of said bond, with notice that the sureties will justify before the court or a judge thereof, at the time and place therein named, not less than five days thereafter, must be served on the claimant or his attorney. Upon the approval of said bond by the court or a judge thereof, an order discharging such lien may be made by the court or a judge thereof.” The respondents refer to the provision of the section and subdivision above cited, declaring that the bond “shall be conditioned for the payment of any judgment which maybe-rendered against the property,” and argue that, in order to obtain the right to enforce the bond, they must have a formal judgment of foreclosure against the property, and consequently that the owner of the premises is a necessary party, such judgment being against her property.

There is undoubtedly an inconsistency between the absolute discharge of the lien, thus releasing the owner and the premises from it, and the maintenance of an action against such owner and the property. This inconsistency results, it is claimed, from the legislative enactment that notwithstanding the lien is discharged, a judgment must be recovered against the property, and that the words of the act “ conditioned for the payment of any judgment which may be rendered against the property,” are equivalent to “ conditioned for the payment of any judgment which shall be rendered against the property.” It is possible, however, to construe the act so as to save the owner of the premises which have been discharged from a lien by the filing of a bond by a third party from the expense and annoyance of a lawsuit, the only object of which is to enable the lienor to enforce such bond.

This may be accomplished by regarding the statutory provision under consideration as requiring, not that a judgment must be obtained against the property, but, that the lienor shall make out a case which but for the filing of the bond would have entitled him to a judgment against the property. If we read the provision as if it stood “ conditioned for the payment of any judgment recovered by the lienor in an action in which judgment might have been rendered against the property if no bond had been filed,” we shall not be unduly importing into the enactment anything contrary or additional to its provisions, but shall be reading it in the light of the evident intention of the legislature.'

It cannot be presumed that the law-makers intended that after the property had been discharged from the lien an action against the owner could be maintained for the foreclosure and sale of the premises; and as suggested by respondents’ counsel the difficulty can be avoided by reading the word “ may” in the clause in question in its natural meaning of “possible;” thus, “any judgment possible to be rendered;” amplified to “any judgment to which the property otherwise might have been liable.” We must give the statute such a construction as will carry into effect all its parts. It is clearly the intention of the legislature that the lien shall be discharged upon the filing of the bond. It is equally clear that no recovery shall be had upon the bond unless the plaintiff shows that he had a valid lien upon the premises when the bond was filed: and if, therefore, we construe the provision in question as requiring that the plaintiff shall in his action upon the bond show himself entitled under the mechanics’ lien act to a lien which but for the filing of the bond would be enforced against the property, we shall be satisfying all the requirements of the statute and imposing no greater obligation upon the sureties than that which they assumed.

In the present case, however, it does not appear that the proceedings necessary under the act to discharge the lien were taken. The averment in the complaint is, “ That on the 11th day of January, 1889, the said defendant, DeWitt S. Mull, filed his bond for twice the amount of the plaintiff’s claim or lien herein in the clerk’s office of the city and county of Mew York.” This is not sufficient to discharge the lien. The act requires that the court shall fix or direct the amount of the bond; that the sureties thereon must be approved after notice of justification, and that upon such approval an order discharging the lien may be made by the court or a judge thereof. Until such order is procured the lien is not discharged, and as the complaint does not allege the making of such an order it does not show that the property or the owner is relieved. For this reason the demurrer of Mr.-Hay is not well taken. The complaint, as it stands, sets forth a good cause of action for the foreclosure of the plaintiff’s lien, and as owner she is a necessary party defendant. The demurrer was, therefore, properly overruled and the judgment should be affirmed. If the defendant alleges and proves a proper discharge of the lien by the filing of a bond under the act, then she may be entitled to judgment in her favor. Upon the pleading before us she is not.

Judgment and order appealed from affirmed, with costs.

Bischofe and Pryor, JJ., concur.


source: Caselaw Access Project

author: Pratt, J.

license: Public Domain

text:
    Henry T. Duryea, Resp’t, v. William D. Andrews et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Conversion—Limitation.
    A horse was stolen'from plaintiff in 1873, and subsequently came into defendants’ possession, but plaintiff did not know of that fact until 1889. In an action for conversion, Held, that the horse having been stolen, its possession in contemplation of law was in plaintiff until demand for its delivery was made, and that the statute of limitations did not begin to run until such demand was made.
    Appeal from judgment in favor of plaintiff, entered on verdict. This was an action commenced December 24,1889, for the conversion of a mare which was stolen from plaintiff by one Bolán in 1873, and subsequently came into defendants’ possession. . Damages were laid at $500.
    The complaint showed that the plaintiff first knew of defendants’ possession of the mare on October 6, 1889. Hone of these statements were controverted by the answer or upon the trial, except the question of value, and the only other issue was the defense of the statute of limitations.
    It was admitted on the trial that a written demand for the mare was duly served upon the defendants on December 18 and 20¡ 1889. The jury found for the plaintiffs and assessed the damages at the sum of $250, and from the judgment entered on such finding the defendants appeal.

      William Man, for app’lts; Edward Cromwell, for resp’t
   Pratt, J.

The judgment in this action must be affirmed. The only defense interposed was that of the statute of limitations, and that statute did not begin to run until the demand for the delivery of the horse in question was made, on December 10, 1889. The horse having been stolen, its possession until such demand was in contemplation of law in the plaintiff, as he was its legal owner.

Judgment and order denying new trial affirmed, with costs.

Dykman, J., concurs; Barnard, P. J., not sitting.


author: Peatt, J.—The

text:
    Sarah M. Wilson, Resp’t, v. Debby Ann McGregor, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Costs—Slander—Alienation of husband’s affections.
    An action for alienation of a husband’s affections by slanderous and malicious reports is an action for a personal injury not triable before a justice of the peace,and upon recovery of less than fifty dollars the plaintiff is entitled to costs not exceeding the recovery.
    Appeal from order of special term, vacating taxation of costs in defendant’s favor and directing taxation in plaintiff’s favor to the amount of forty-five dollars.
    The respondent brought suit for alienation of her husband’s affections, by sayings of the defendant, and asked judgment for §15,000 damages. The jury gave her forty-five dollars.
    The county clerk taxed costs of defendant and refused to tax the plaintiff’s costs. ■ Upon this the plaintiff moved, at special term, for re-taxation, and order was made reversing the county clerk and granting the plaintiff forty-five dollars costs; as much as recovery.

      William D. Dickey, for app’lt; Wilton Bennet, for resp’t
   Peatt, J.—The

complaint herein alleges “ That the defendant herein, wilfully and maliciously contriving, did unlawfully and illegally * * * alienate the affections of plaintiff’s husband by false, slanderous and malicious reports, to wit: that the plaintiff was a prostitute, etc., and divers other false, malicious and slanderous words,” also, that by reason thereof plaintiff’s “ home was broken up and the affections of her husband alienated.”

The last clause alleges the special damages suffered by reason of the utterance of the slanderous words. The complaint therefore states the facts constituting the cause of action.

We may call it an action of slander or one in the nature of seduction, the former, T think, more nearly describes it, but if it is either, it was one not proper to be brought before a justice of the peace, and, hence, the costs, as finally adjusted, were correct.

This is clearly an action for a personal injury and under § 3343, subd. 9, such an action includes “ Libel, slander, seduction,” etc., * * * “ or any other actionable injury to the person of the plaintiff or of another.

It seems to be clearly the intent of the Code that actions of this nature shall not be tried before a justice of the peace, and that where the recovery is less than fifty dollars the costs shall not exceed the recovery.

We think the order is right and must be affirmed.

Order affirmed, with costs and disbursements.

Dykman, X, concurs; Baenaed, P. X, not sitting.


text:
    Thomas Wheeler, Pl’ff, v. William Emmeluth, Resp’t. Obed Wheeler, Adm’r, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    1. Insolvency—Error in naming creditor.
    On an application to cancel a judgment .after discharge in insolvency, objection was made that in the list of creditors in" the insolvency proceedings appears the. name of the original judgment-creditor, who had died, and not that of his administrator. It did not appear that the debtor knew of such death. Held, not an error which would make the insolvent proceedings void.
    2. Same—Discharge op judgment.
    It was claimed that one of the judgments discharged was recovered in justice’s court and filed with the county clerk. The petition stated that a judgment was entered in the supreme court on that day, and the opposing affidavit did not deny that such a judgment was entered, and this was the judgment directed to be cancelled. Held, that the order was not aimed at and did not affect a judgment recovered in justice’s court.
    Appeal from order cancelling and discharging of record two judgments in favor of plaintiff against defendant.
    The order was made on the ground of defendant’s discharge in insolvency, the petition for which was presented August 3, 1885.

      Michael J. Scanlan, for app’lt; Gabriel Levy (Jacob Levy, of counsel), for resp’t.
   Pratt, J.

The principal defect urged against the insolvent discharge is that in the list of creditors appeared the name of Thomas Wheeler, whereas properly the name of Obed Wheeler, as administrator of Thomas, should have been entered.

There is no reason shown to suppose that at the time of making the application the petitioner was aware of the death of his creditor, which was then recent.

Mot every omission or error will make insolvent proceedings void. If honestly prosecuted the inclination and duty of the court will be to disregard errors that have not caused injury.

The brief of the appellant states that one of the judgments cancelled by the special term order was entered in a justice’s court, and that being docketed in the county clerk’s office, it became a judgment of the county court, and that the motion for discharge should be addressed to that tribunal. But the petition avers the judgment was entered in the supreme court on February 24, 1876. The opposing affidavit does not deny that such a judgment was entered, and the order appealed from directs the cancellation of such judgment.

If "it be that a judgment was entered on the 23d of February, 1876, in a justice’s court, it is not aimed at or affected by this proceeding.

It may well be that to cancel that judgment resort should be had to the county court.

Order appealed from affirmed, without costs.

Barnard, P. J., concurs; Dtkman, J., not sitting.


author: Barnard, P. J.

text:
    Anna R. Harlow, Resp’t, v. Abner Mills, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed Dec. 8, 1890.)

    Money had and received—Liability for loss by failure of bank.
    Defendant, who had acted as administrator of plaintiff’s father, after his discharge as such received the proceeds of sale of a farm and personal •property, which lie claimed to keep as administrator and deposited m a "bank which failed two months thereafter. Held, that it was the duty of defendant to pay over such money immediately, and he was liable for the money so lost and legal interest thereon.

      Appeal from judgment in favor of plaintiff, entered on the report of a referee.

      T. A. Read (A. S. Cassedy, of counsel), for app’lt; Daniel Finn ( Wm. Vdnamee, of counsel), for resp’t.
   Barnard, P. J.

William D. Harlow died intestate in 1874, leaving four children. The plaintiff is one of them. He left a widow, who has since died. He left a farm of land, which was sold in September, 1884, for $14,341.25. There was personal property sold to the amount of $1,670.75. The whole of the proceeds of the real and personal estate went into the hands of the defendant at the time. He managed the sale, which was perfected by a deed signed by the children of the deceased. There was no arrangement between the plaintiff and defendant under which the defendant took the money for the farm. He was a cousin of the plaintiff, and took the moneys for the children. He was administrator of the estate. These payments were made at different times. This action is brought to recover the balance due her from the proceeds of her father’s property. The personal estate was settled before the surrogate in 1880. The defendant deposited the moneys he received with the exception of a small sum represented by a note given for a part of the personal property in the Middletown Rational Bank. The bank failed, and some twenty per cent, of the money was lost by the defendant. The money had been in the bank about two months before the failure. When the defendant received the money, it was his duty to pay it over at once, and for that purpose to seek his creditor. Mills v. Mills, 115 N. Y., 80; 23 N. Y. State Rep., 604.

The deposit of the money for two months was wholly without authority, and the defendant cannot throw the loss occasioned thereby upon the plaintiff, who did not assent to the same. There is nothing in the proof which will justify an inference that the plaintiff assented to defendant’s custody of the money. He claimed to keep it as administrator, and the plaintiff was not informed that he could not keep it as administrator until quite recently, and some years after he was discharged as administrator of the personal estate. The case thus shows a detention of money without authority, and -under the line of cases which hold defendant’s obligation to require immediate payment over, a loss by failure of the bank in such a case falls upon the debtor. There are cases which hold a trustee or public officer who deposited money in a bank of good standing, and without negligence on his part, will not be liable if the bank fails. People ex rel. Nash v. Faulkner, Exr., 107 N. Y., 477; 12 N. Y. State Rep., 271.

The facts found do not bring this case under the principle governing the liability of trustees or public officers. The complaint is one upon contract. The words averring a wrongful holding and a wrongful conversion are not inconsistent with an averment of a contract, and such words may be disregarded upon the trial. Conaughty v. Nichols, 42 N. Y., 83.

Assuming a liability, there is no reason why the legal rate of interest should not be added. The case cited' for a contrary rule, King v. Talbot, 40 N. Y., 76, was as to the liability of a trustee and executor. The defendant is liable if at all like any other debtor, and it is no defense that a bank in which he deposited money failed.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    In the Matter of the Application of Edward B. Long et al., Trustees, etc.

      (Supreme Court, General Term, Second Department,

      Filed December 8, 1890.)

    Eminent domain—Sewees—Laws 1887, chap. 609.
    Where the petitioner shows a reasonable necessity for the condemnation of land for sewerage purposes under chap. 609, Laws 1887, the application should be granted.
    Appeal by Charles Butler from order confirming report of commissioners appointed to appraise lands to be taken for sewerage purposes under Laws 1887, chap. 609.

      Willard Parker Butler, for app’lt; Id. T. Dykman, for resp’ts.
   Pratt, J.

This is a proceeding on behalf of the board .of trustees of the village of White Plains, Westchester county, to acquire lands necessary to be used by said village in the construction, completion and maintenance of its sewers and sewerage system, pursuant to chap. 609 of the Laws of 1887, and acts amendatory thereto and included therein.

The proceeding was begun by filing the petition in the office of the clerk of the county of Westchester,. on February 28, 1890. The petition and notice of motion for the granting of the same was served on the claimant on March 1,1890; the claimant, Charles Butler, owner of parcel No. 11, enumerated in the petition, appeared by attorney, and objected to the appointment of commissioners and interposed a verified answer.

The issues so raised were tried at a special term for the trial of equity causes, before the Hon. J. F. Barnard, P. J., at the county court house at Poughkeepsie, on March 18, 1890.

Proofs were taken and findings of fact and conclusions of law were made by the court, and an order thereupon entered overruling and denying the issues raised by the said claimant herein by his said answer, and granting the prayer of the petition as to the real estate owned by said Charles Butler and described as said parcel No. 11, and appointing commissioners of appraisal to appraise and ascertain the compensation to be paid to said claimant for his said parcel No. 11. .

Thereafter the commissioners duly met and appraised and •ascertained said compensation.

From the order of confirmation the claimant appeals.

At the hearing at special term no irregularity was shown either in the form of the petition or the proceedings connected therewith, or any failure of the trustees to perform their duties under the act of the legislature appointing them.

These trustees were authorized to adopt and establish, subject to the approval of the state board of health, a permanent system of sewerage and drainage for the village of White Plains. The board was also authorized to determine the location of all sewers which may become necessary, and to fix and carry out all the details necessary to accomplish the work contemplated by the statute.

The board did fix upon a plan, and it was approved by the state board of health.

The board, also, under the statute, had the power at any time to extend the sewer or to do anything appurtenant thereto, and to change the plan with the approval of said board of health. It appeared at the hearing, without contradiction, that it was necessary to acquire the land in dispute in order to carry out the plan adopted by the board and approved by the board of health.

What system of sewerage should be adopted was under the statute left to the determination of the trustees, subject as before stated to the approval of the board of health, and it cannot be attacked or changed by a property owner upon the ground that some other system would be better.

The general rule in "such case is that where the .petitioner shows a reasonable necessity for the condemnation, the application should be granted. Matter of N. Y., L. & W. R. R. Co., 35 Hun, 220; Matter of N. Y., L. & W R. R. Co., 99 N. Y., 12; Matter of N. Y. C. & H. R. R. R. Co., 77 id., 248.

We think the petition was sufficient in form, that the land sought to be taken was necessary for the sewer outlet, and that no irregularity occurred in the proceedings sufficient to invalidate the order made therein.

Order affirmed, with costs.

Bartlett, J., concurs in result.


author: O’Brien, J.

text:
    William Schmalz et al., Resp’ts, v. Sarah F. Mead et al., App’lts. Gilbert Wood et al., Resp’ts, v. Sarah F. Mead et al., App’lts.

      (Court of Appeals,

      Filed January 13, 1891.)

    1. Mechanic’s lien—“Owner.”
    On the 7th of November, 1885, George W. Mead, as agent for defendant, entered into a written contract with one Kuhn for the sale of certain real estate to him, agreeing that Kuhn was to build certain houses thereon, and that Mead would, from time to time, advance money for building purposes. The title was not to pass to Kuhn until the buildings were completed, when he was to execute a mortgage to defendant. Kuhn died before the buildings were completed. Held, that as the title never passed from Mrs. Mead to Kuhn, she is to be deemed the owner for all purposes contemplated by statute in regard to mechanic’s liens.
    2. Same—“ Consent of owner.”
    The contract was made by defendant’s authorized agent. She took an assignment of it, advanced all the money on it, and stipulated for the execution of mortgages to her upon it to secure money advanced and other moneys, and knew that the buildings were being erected. Beld, that the labor was performed ‘' with the consent of the owner,” as required by the statute.

      Appeal from, judgment of the New York common pleas, general term, affirming judgment in favor of plaintiff on report of referee.

      F. F. Dana, for app’lts; Wm. F. Stewart, for resp’ts.

       Affirming 23 N. Y. State Rep., 117.

   O’Brien, J.

These actions were brought to foreclose a mechanic’s lien, and were consolidated by order of the court The plaintiff and other parties who were made defendants were adjudged to be entitled to liens upon certain real estate situated in the city of New York of which Sarah F. Mead, the defendant, was the owner. On the 7th of November, 1885, the defendant’s husband, George W. Mead, as her agent, entered into a written contract with one Kuhn for the sale to him of the real estate described in the complaint. In this contract it was agreed that Kuhn should build certain houses on these lots and that Mead,'from time to time, when the bui dings were at certain points of completion, would advance money. The title of the land was not to pass to Kuhn until the completion of the buildings, and then he was to execute to the vendor a mortgage on the lands, including the completed buildings, to secure the moneys thus advanced and the purchase-price of the land.

This contract, though made for the benefit of the owner by her husband, ran in form to him, but was soon after its execution assigned to the defendant, and she made all the advances of money as therein stipulated. Kuhn entered upon the performance of this contract, and the buildings were well advanced towards completion when he died, and his contract was not performed.

The parties who claim liens performed labor or furnished materials in the erection of the buildings specified in the contract, under agreement with Kuhn. The only question involved in this appeal is'whether a mechanic’s lien could be acquired, as against the owner, under these circumstances.

Under the statute which formerly regulated mechanics’ liens in the city of New York, it is no doubt true that parties situated as the respondents in this case are could not have acquired any lien, as it was then necessary to show that the labor was performed or the materials furnished by the party claiming a lien under or by virtue of some agreement or contract between him and the owner of the land, and hence the numerous cases decided under the statute, as it then stood, have no application to this case. Loonie v. Hogan, 9 N. Y., 435.

These statutes were changed from time to time by the legislature in order to meet defects and hardships in their application, which actual practice and experience had disclosed. The whole subject is now substantially regulated by chapter.842 of the Laws of 1885, and it is underthis statute that the lien in this case is asserted and must be upheld, if at all.

The first section of that act provides that “ any person * * * who shall hereafter perform any labor or service, or furnish materials which have been used, or which are to be used, in the erecting, altering or repairing any house * * * with the consent of the owner, as hereinafter defined, or his agent * * * shall * * * have a lien to the extent of the interest of the owner. * * * In case there is no contract, then the amount of the value of such labor or material then remaining unpaid.” The fifth section of the act contains the following provisions: “In cases in which the owner has made an agreement to sell and convey to the contractor or other person, such owner shall be deemed to be the owner, within the intent and meaning of this act, until the deed has been actually delivered and recorded.” We think that the language of the statute meets and answers all the objections which the owner makes to the judgment in this case, declaring that the respondents are entitled to a lien upon the property for the labor performed and the materials furnished in the erection of the buildings by them.

These objections are substantially that no lien could attach to the lands without the express consent of the owner, Mrs. Mead; that the only interest upon which a lien could attach was that of the vendee and contractor Kuhn; that in any event the liability of the owner and the property must be limited to such payments or advances as she was to make under the contract, and these advances having been fully made in accordance with the terms of the contract the owner and her property are discharged.

As the title to the property never passed from Mrs. Mead to Kuhn, she is to be deemed the owner for all purposes contemplated by the statute in regard to the protection of mechanics, laborers and others whose claims for labor and materials remained unpaid by the party who employed them.

It is only necessary to enquire whether, in this case, the work was performed and materials furnished “ with the consent of the owner,” within the scope and meaning of the statute. The referee has found, as matter of fact, that the consent was given. This finding was based upon the terms of the contract and the circumstances of the transaction, and not upon proof of any express consent on her part. The contract with Kuhn, though made by her husband and in his name, was her act. It was made for her by her authorized agent, and she took an assignment of it within a short time after its execution. She herself advanced all the money on it, and ■she stipulated for the execution of mortgages to her upon the property when the buildings were completed to secure the moneys advanced, besides a considerable sum in addition. She knew that the buildings were being erected, that labor was employed and materials furnished for that purpose. The contract itself contemplated and provided for all this, and the uncompleted buildings became a part of the realty. She made a contract which required the erection of buildings on her land. She was to furnish the money for that purpose.

The performance of the contract involved the employment of labor and the purchase of materials. We think it quite clear that the labor performed and the materials furnished in- the erection of these buildings was with the consent of the owner, and that the finding of the referee was warranted by the proofs. This court has so construed local statutes relating to mechanles’ liens containing substantially the same provisions as this act of 1885. Hackett v. Badeau, 63 N. Y., 476; Husted v. Mathes, 77 id, 388; Nellis v. Bellinger, 6 Hun, 560; Otis v. Dodd, 90 N. Y., 336.

The contention in behalf of the owner that the claims of mechanics and material men must, in any event, be limited to such sums as she was bound to advance upon the contract, and had not advanced, is equally untenable. It was the design and purpose of the statute to charge the land with debts contracted in improving it by the erection of buildings thereon in case the owner consented or permitted the work to be done, although under an agreement made with the vendee under an executory contract. In case the agreement of sale should be surrendered or forfeited, the value of the owner’s interest would be enhanced by the accessions to the land, and it would be manifestly unjust to permit the owner to enjoy those benefits without liability for any part of the labor or material which produced them. Rollin v. Cross, 45 N. Y., 766; Burkitt v. Harper, 79 id., 273 ; Otis v. Dodd, 90 id., 336.

The notices of liens described Greorge W. Mead and Kuhn as owners. But the statute provides that a mistake in the name of the owner shall not defeat the lien. The other objections made to the form of the notice were correctly disposed of in the court below. No substantial question is raised by the exceptions taken at the trial.

The judgment should be affirmed, with costs.

All concur.


author: Ruger, Oh. J.

text:
    The State of New York, App’lt, v. The County of Kings et al., Resp’ts.

      (Court of Appeals,

      Filed January 13, 1891.)

    1 Taxes—Void law.
    When the state finds that a tax law is void and cannot he enforced against unwilling taxpayers, it is its duty to either refund to that portion of the taxpayers of the state who have voluntarily paid the tax under the law the sums respectively collected of them, or to enforce against those refusing to pay such tax the payment of a sum equal to the amounts paid by other taxpayers under the void law.
    2. Same—Duty of the legislature.
    So long as a county neglects the payment of its equal proportion of the .taxes of the state, the duty rests upon the state government to adopt the necessary means and measures to compel that county to perform its neglected duty, irrespective of the length of time which has elapsed since its neglect occurred.
    3. Same.
    The moral obligation which each county is under to contribute its equal share to the payment of taxes affords ample authority to the legislature for the exercise of their power to levy a tax sufficient to put its burdens on terms of equality with other parts of the state.
    4. Same—Statute oe limitations.
    . Subject to the constitution alone, the power of the legislature to levy taxes is unlimited, and no loches or statute of limitations can bar it from the exercise of that power when justice or equity require it to be done. A statute of limilation applies only to the prosecution of legal actions and proceedings and can have no effect upon the exercise of legislative power.

      5. Boabd op claims—Appeals.
    No appeal lies to this court from any tribunal unless authorized by some statute, and there is no statute which gives an appeal in a case of this character from the board of claims.
    Appeal from decision of the board of claims in favor of defendants.

      Chas. F. Tabor, for app’lt; Wm. Q. Cooke, for resp’ts.
   Ruger, Oh. J.

By chap. 734 of the Laws of 1872, the state attempted to impose a tax of 3|- mills per dollar on the assessed valuation of real and personal property in the state. This act was subsequently declared void by the courts on account of remediable defects of form. In the meanwhile, however, most of the counties of the state had levied and collected the tax and paid the amount thereof into the state treasury. Some of the counties, however, among which was the county of Kings, neither levied nor paid over to the state the amount of the tax, and thus a serious inequality in the burden of taxation among the various counties of the state was produced. After the final decision in the courts declaring the act of 1872 void, the legislature, in the year 1873, by chap. 643 of that year, entitled An act to provide for the support of government and for other purposes,” undertook to relevy the tax of 1872 upon the whole state, in a form not open to constitutional objections, but providing, substantially, therein that the payment by the several counties, apparently liable therefor, to the state of the tax of 1872 should be accepted as a satisfaction of the sums required to be paid by the levy of 1873. It was also provided thereby that “there shall be levied and imposed by the board of supervisors of the county of Kings upon the real and personal property of said county liable to taxation for the fiscal year beginning on the 1st day of October, 1873, in addition to any and all other taxes levied and collected therein by law, the sum of $682,984.22, and when the same shall be paid into the treasury of the state it shall be in satisfaction of the tax to be levied and imposed and of the money to be raised and collected in said county in pursuance'of this act.”

This sum was the precise amount required to be paid by the county of Kings, under the act of 1872, to bring it upon terms ■of equality with the other counties of the state in regard to the taxes of that year. Perfect equality could not, however, be effected among the various civil divisions of the state in respect to such tax, unless the defaulting counties should also be required to pay interest upon the sums in which they were in default. It was, therefore, provided by chap. 760 of the Laws of 1873 that the several counties of the state which did not in the fiscal year commencing on October 1, 1872, pay into the treasury the amount which would have been required from said county under the act of 1872, if valid, should pay an amount equal to the interest thereon from the time when the same was payable to the time when the same should be eventually paid; and that such amount ■should be raised and paid over by the board of supervisors of said county in the same manner as other debts and moneys for which said counties were liable to the state. The county of Kings never paid to the state the sum of $682,984.22 required by the law of 1873; but did, in 1873, raise and pay over the sum of $634,801.26, leaving unpaid of the tax assessed by the Laws of 1872, and relevied in 1873, the sum of $48,182.95, besides interest, which has been estimated to amount to the sum of $47,808.90 for the first year of its default. The entire amount, therefore, claimed by the state in this proceeding was the sum of. $95,991.85, with th¿ interest thereon. In 1873 the county of Kings effected a reduction of the assessed valuation of its real and personal property to the amount of nearly $14,000,000; and instead of providing for the payment in that year of the gross sum of $682,984.22, as required by § 4 of chap. 643 of the Laws of 1873, it assessed the tax of 3£ mills upon the reduced valuation of 1873, thus falling $48,182.95 short of raising the amount it was required to pay by the law.

This conduct was a manifest evasion of the requirements of the law df 1873, and, if such law was legally enacted, can be justified upon no principles of justice or morality. When the state found that the tax law of 1872 was void and could not be enforced against unwilling taxpayers, it was its duty, in the interest of justice and honesty, to adopt one of two courses, either, first, to refund to that portion of the taxpayers of the state who had voluntarily paid the tax of 1872 the sums respectively collected of them; or, secondly, to enforce against those refusing to pay such tax the payment of a sum equal to the amounts paid by other-taxpayers in 1872. The act of 1873 indicated that the state elected to pursue the latter course, and since that time it has been ineffectually endeavoring to prevail upon the county of Kings to pay such an amount as should put it on terms of equality with other taxpaying portions of the state.

It is quite difficult to see why the public officers, or if they were in-default, why the legislature has so long delayed and disregarded the plain duty of compelling the county of Kings to perform its obvious duty. The requirements of the act of 1873 are plain and unambiguous, and there would seem to be no reason why they should not have been enforced against Kings county, either by the law officers of the state or by the legislature, if additional legislation was required. It is the imperative duty of the legislature to see to it that the burdens of taxation shall be laid as equally as possible upon all classes, and the toleration of any serious inequality, which can be obviated by legislation, constitutes a reproach to the legislative body. So long, therefore, as the county of Kings continues to neglect the payment of its equal proportion of the taxes of the state, the duty rests upon the state government to adopt the necessary means and measures to compel that county to perform its neglected duty, irrespective of the length of time which has elapsed since its neglect occurred.

There seems to be no sufficient reason why a reference of this subject should have been made to the board of claims, as it involved the performance of a legitimate duty, and the examination and decision of the court of claims on a partial consideration of the subject could not have aided the legislature in the performance of that duty, or excused its non-performance. Its duty to equalize the taxation of the year 1872 would still have remained to be performed even if the decision of the board of claims had been against the state, and its decision in favor of the state would not dispense with the legislation necessary to effect the object in view.

The reference seems to have been simply a contrivance by which the county of Kings was enabled to evade for a time the performance of its unquestioned duty.

The facts of this claim are fully spread out in the printed statutes of the state and upon the books of its comptroller; and any person-having a desire to be informed concerning them could have been fully satisfied by making inquiry of the regular financial officer of the state. A resolution by the legislature asking for such information from the comptroller would have elicited at any time all the light in respect to the subject that was material or necessary to enable it to legislate intelligently upon the subject. Its duty in the premises was a plain legislative obligation to inquire whether all portions of the state had paid their proportionate shares of the tax of 1872, and, if they had not, to enact promptly such laws as would, if properly enforced, place the whole state on terms of equality in respect to such tax. This could only be done by imposing a tax upon the delinquent parties sufficient in amount when enforced to produce equality among the taxpayers. notwithstanding the act of 1872 had been declared unconstitutional, there still remained a moral obligation upon the taxpayers of Kings county, by reason "of the circumstances, to make their contributions to the state treasury equal to those of other taxpayers, and principles of justice as well as equity required that irregularities produced by the operation of statutes should be remedied by the legislature.

The power of that body to correct these irregularities is undoubted, and so long as it permits one portion of the state to be taxed for the benefit of another, without effort to adjust the irregularity, it is justly subject to the reproach of neglecting its constitutional duty. The moral obligation which the county of Kings is under to contribute its equal share to the payment of taxes affords ample authority to the legislature for the exercise of their power to levy a tax sufficient to put its burdens on terms of equality with other parts of the state. The authority which the legislature possesses on the subject of taxation is well defined in the case of Genet v. City of Brooklyn, 99 N. Y., 301, where it was said that “ The power of taxation is vested in the legislature and is practically absolute, except as restrained by constitutional limi-' tations. The power of taxation being' legislative, all the incidents are within the control of the legislature. The purposes for which a tax shall be levied; the extent of taxation; the apportionment of the tax; upon what property or class of persons the tax shall operate; whether the tax shall be general or limited to a particular locality, and in the latter case the fixing of a district of assessment ; * * * are matters within the direction of the legislature and in respect to which its determination is final.”

Subject, therefore, to the constitution alone the power of the-legislature to levy taxes is unlimited, and no loches or statute of limitations can bar it from the exercise of that power when justice or equity require it to be done. Stuart v. Palmer, 74 N. Y., 183; Genet v. City of Brooklyn, 99 id., 307.

The legislature seem to have been conscious of a neglect of duty, and in 1884 it passed an act apparently intended to initiate some proceedings in reference to the subject. Chap. 318, Laws of 1884. The act is short and reads as follows: Section 1. The board of claims is hereby authorized and directed to hear, audit and determine the claims of the state for balances due on the books of the comptroller from Clinton, Kings, Putnam, Richmond and Schuyler counties; said balance arising from interest due on state tax, defalcation of county treasurers and other causes, and to make such awards as shall be just and equitable. Section 2. This act shall take effect immediately.”

It was under this act that the claim in question was made before the board of claims. The county of Kings voluntarily appeared before that board and claimed that it was not liable to the state; for the reasons, first, that its claim was barred by the statute of limitations, and, secondly, that the acts of 1873 were, for various reasons, unconstitutional. The board of claims, without determining the question of the constitutionality of the acts referred to, decided that more than six years had elapsed since the state had become entitled to enforce its liability, and the claim was therefore barred.

If it be assumed that the only question submitted to the board of claims was whether a remedy under the statutes of 1873 was the only one which was open to the state, and that those statutes were constitutional and six years had elapsed without action on the part of the state to enforce its claim, some support might be found for the award of the board of claims. It is undoubtedly true that the statute of limitations generally runs against simple contract debts resting upon contract, or statute in favor of the state and they may be barred by the lapse of six years. Sec. 389, Code of Civil Procedure. But is quite absurd to say that the right of the state to enact laws for the purpose of effecting a just and equitable distribution of the burdens of taxation among its citizens can be bound by any lapse of time. A statute of limitation applies only to the prosecution of legal actions and proceedings and can have no effect upon the exercise of legislative power.

It is quite difficult to see how the board of claims reached the 'conclusion that the claim of the state was barred. It is elementary that a statute of limitation does not run until after a cause of action has accrued to the creditor, and yet that court concluded that the statute was a bar, although they were in doubt whether the Laws of 1873 were constitutional or not

The Law of 1872 was confessedly unconstitutional, and the respondents there and here contended that the Laws of 1873 were equally void, as being in violation of the constitution. Without determining this question, the board held the state barred. It is quite probable if the board had considered the constitutionality of the Laws of 1873, it would have held them to be unconstitutional, as it gave a strong intimation to that effect in its opinion. We cannot understand its expression that there were “other objections made to an award in favor of the state which were difficult' to obviate,” as referring to any other question than that one, which, aside from the statute of limitation, was the only question, raised in the case. Unless, therefore, the constitutionality of the Laws of 1873 was found by the trial court, we do not see that the question of the statute of limitations was in the case. Such a statute does not begin to run until after a cause of action has accrued to the creditor, and if no legal obligation to pay the tax in question was ever imposed on the county of Kings, the state could then have had no claim upon which the statute would operate.

But, in reviewing the proceedings of the board of claims, we have been embarrassed, not only by the vagueness and uncertainty of the questions submitted, but also by doubts as to the validity of the referring act itself. We do not question the fact that the board of claims is a constitutional tribunal, and is lawfully authorized to determine claims against the state which may have been referred to it; but it does not follow that the legislature-can compel citizens to appear before it and litigate claims made by the state, or any other party, against them. Such boards have usually originated out of the apparent inj ustice of depriving the citizens of all remedies against the state through the inability of the regular judicial tribunals to acquire jurisdiction over the sovereign. Such jurisdiction can be obtained only by the consent of the sovereign, People v. Dennison, 84 N. Y., 281, and in giving such consent the government may lawfully prescribe the terms and conditions upon which such prosecutions shall proceed, and it may lawfully create a special tribunal for the hearing and determination of such exceptional cases as' established courts are precluded by the general laws or policy of the state from hearing and deciding.

The state may, to a certain extent, abandon its prerogative and consent to appear before a special tribunal. McElrath v. United States, 102 U. S., 440. This, however, does not necessarily authorize the legislature to create a judicial tribunal of general jurisdiction to hear and determine judicial questions which are cognizable in the regular constitutional tribunals of the state. Section 19, Art. 6 of the Constitution; see DeHart v. Hatch, 3 Hun, 375. We do not, however, propose to discuss or determine this point, as there is still another question which precludes us altogether from considering this appeal, and that is the non-appealability of the award in question. The .act of 1884 does not, in terms, purport to amend the acts of 1883 and 1884, creating the court of claims and providing for the practice to be followed therein, and does not of itself authorize an appeal to this court from any award made under it The acts creating the board of claims provide-especially for appeals from certain special awards therein authorized to be made to the court of appeals by any party who may be aggrieved; but do not, in terms, provide for appeals generally from all decisions made by such tribunal. The legislature in making reference of • special cases to the board of claims, have generally provided in the acts making such references for an appeal to this court. Chap. 829, Laws of 1884; chap. 85, Laws of 1884.

It may be implied from this practice that it did not suppose the right of appeal existed unless specially provided for. The jurisdiction attempted to be given to the board of claims in this case is novel, special and altogether foreign to the purposes for which that tribunal was originally organized, and the right of appeal conferred by that act cannot, we think, be construed to cover a jurisdiction so different from that contemplated by the act of its creation.

Ho appeal lies to this court from any tribunal unless authorized by some statute, and we do not think there is any statute which by reasonable construction gives an appeal in this case.

The appeal is, therefore, dismissed.

All concur, except O'Brien', J., who takes no part.


author: Earl, J.

text:
    George E. Nash, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

      (Court of Appeals,

      Filed January 13, 1891.)

    ¡Negligence—Railroad crossing—Contributory negligence.
    Plaintiff lived on the easterly side of defendant's railroad. On the afternoon of a clear day he drove down a private lane to a gate seventy-nine feet from the track, which his son opened, and he then drove on down the lane on a walk until he reached level ground, thirty-five feet from the easterly track of the railroad, then on a trot to and upon the track, when an engine, approaching from the south, struck the horses and wagon, killing his wife and injuring him. Beld, that as plaintiff knew that the trains from the south ran upon the easterly track, • hut did not, after passing through the gate, listen for any train nor look south for the train until his horses had substantially reached the track, which he could have seen for half a mile during the last twenty-five feet, he was guilty of contributory negligence which would defeat his claim for negligence, even though the engineer failed to ring the hell or blow the whistle.
    (Ruger, Ch. J., and Andrews, J., dissent.)
    Appeal from judgment of the supreme court, general term, second department, affirming judgment for plaintiff entered unon a verdict rendered at circuit.

      Calvin Frost, for app’lt; Clarence JR,. Conger, for resp’t.

       Reversing 22 N. Y. State Rep., 106.

   Earl, J.

On the 2nd day of October, 1886, the plaintiff and his wife were in a wagon drawn by'two horses, passing over the defendant’s railroad in Rockland county, and an engine drawing a train of passenger cars came in collision with the horses and. wagon, killing his wife and horses, demolishing the wagon and seriously injuring him. This action was brought to recover damages for his injuries and the destruction of his property. Upon the first trial he was non-suited, and upon appeal by him to the general term he obtained a new trial. Upon the new trial he recovered a judgment, which has been affirmed at the general term.

The sole negligence alleged against the defendant is the ornission of its agents having charge of the engine to ring the bell or blow the whistle as they approached the crossing. There appears to have been a great preponderance of evidence to show that the bell was rung and the whistle blown. But there was some evidence tending to show that these signals were not given, and hence we cannot say that the question of the defendant’s negligence should not have been submitted to the jury.

But we think the undisputed evidence shows negligence on the part of the plaintiff, and that his complaint should, therefore, have been dismissed.

At the place of the accident the railroad runs north and south. The plaintiff lived on the east side of the road several hundred feet therefrom, and was perfectly familiar with the road and the running of its trains. There was a private lane from his residence across the railroad to the highway on the west side thereof. The defendant owned a strip of lancl seventy-nine feet wide on the ""easterly side of its road, and on the easterly side of the land there was a fence, and in the line of the fence there was a gate across the plaintiff’s lane. He drove to this gate in the afternoon of a clear day, and his son opened the gate and he drove through it down the lane on a walk until he reached level ground thirty-five feet from the easterly track of the railroad, and then he permitted his horses to trot to and upon the railroad track until the engine approaching from the south struck the fore part of the wagon and the hind part of the horses. The rails of the track were four feet and eight inches apart and the two tracks were eight feet apart. The plaintiff knew that the trains from the south ran upon the easterly track, and that thus he would first be exposed to peril upon that track, and y* after he passed through the gate he did not listen for any train while passing over the seventy-nine feet, and he did not look to the south to see if a train was approaching from that direction until his horses, trotting, had substantially reached the track, although if he had looked toward the south at any point within twenty-five feet of the easterly rail he could have seen the track for half a mile.

Under such circumstances we do not see how the plaintiff can escape the charge of contributory negligence. He knew he was approaching a place of danger and yet took no precaution whatever to avoid it until it was too late. The fact that he could not see to the south until within twenty-five feet from the track made it his duty to be vigilant for his protection when he could see and when vigilance would avail him. It is clear that if he had taken that care of himself which everyone is bound to when he approaches such a place of danger, this most unfortunate accident could not have occurred. A momentary glance to the south would have been sufficient.

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

All concur, except Ruger, Oh. J., and Andrews, X, dissenting.


author: Osborne, J. Clement, Ch. J.

text:
    Asa W. Parker, Resp’t, v. Alexander McLean, Impl’d, App’lt.

      (City Court of Brooklyn,

      General Term,

      Filed December 22, 1890.)

    Bills and notes—Divbesion—Resteiction on use.
    In an action on a promissory note the endorser defended on the ground that he endorsed the note and it was given to the payee for accommodation and on the agreement that it should be applied to the payment of a chattel mortgage on certain property in a hotel and no other purpose, and that the note was diverted. Plaintiff advanced money on the note, which was not all applied on the mortgage. The evidence showed that the maker of the note agreed to exchange the mortgaged property for certain real estate and give a note for $2,000 to be applied to pay the mortgage, but it being discovered that there were unpaid taxes on the real estate, it was agreed to deduct them fromthe amount of the note and the note in suit was given for the difference, the 'payee to attend to paying off the mortgage. Reid, that this evidence would not support a verdict in favor of defendant’s contention and that the court properly directed a verdict for plaintiff.
    (Clement, Oh. J., dissents.)
    Appeal by defendant McLean from judgment in favor of plaintiff, entered upon verdict directed by the court.

      Asa W. Parlcer, for resp’t; King & Clement, for app’lt.
   Osborne, J.

This action was brought by the plaintiff to recover the amount of a certain promissory note held by him for $1,128.86, dated July 18, 1889, at four months,.made by the defendant Everett, to her own order, and endorsed by the other defendants. The defendant McLean alone defends, and he sets up as a defense that said note was made and was endorsed by him “ for the special use, purpose and object of being applied to the payment of a certain mortgage on personal property at the Hotel Everett, in the city of New York, held by P. J. Hicks and others, trustees, and made by Evelyn P. Everett, and was so endorsed and delivered to S. B. Oulton without consideration and for accommodation.” He further alleges that both Oulton and plaintiff -agreed that it should be so applied, and for no other purpose ; that said note was diverted by them and converted to their own use, and that plaintiff is not a bona fide holder for value, but that he received said note with notice of the foregoing facts, and without paying any consideration therefor.

After hearing all the evidence, the learned trial judge directed a verdict for the plaintiff for the sum of ten hundred and fifty dollars, being the amount advanced by him on the note. Defendant’s counsel asked to go to the jury “ on the question whether plaintiff made the agreement, and whether it was kept or not, and, further, on the question whether the note was not endorsed and delivered upon the condition which has not been complied with; and also upon the good faith of the plaintiff as to whether he was or was not a bona fide holder of the note.” These requests were denied, and defendant excepted thereto, and to the direction of a verdict for the plaintiff.

Defendant appeals from the judgment entered on the verdict so directed, and from an order denying a motion for a new trial.

Assuming, for the purposes of this appeal, that the defense, if established, was a good one, it becomes our duty to examine the evidence to determine whether appellant has presented on the trial sufficient evidence as to the alleged restriction of the use of the note to sustain a verdict in his favor if the jury had so found.

It appears from the evidence that, early in 1889, plaintiff foreclosed certain mortgages on property in this city belonging to the defendant, Oulton, and became the purchaser thereof on the foreclosure sale. He thereupon told Oulton that he wanted nothing more than the property cost him, and that if Oulton could ■ make any trade by which he could realize something out of the property, plaintiff would convey the property for what it cost him, taking a mortgage therefor.

Thereupon Oulton made an agreement with the defendant, Everett, by which she was to take a conveyance of this real estate, or the equity therein, in exchange for certain restaurant property in the city of Hew York. This personal property was subject to a mortgage for $2,000, maturing in August, 1889, and in making the exchange it was agreed that the defendant, Everett, was to give Oulton her note for $2,000 to pay off this mortgage.

■ The parties in interest met on about July 18, 1889, to close the traksaction, and it was then learned that the real estate in Brooklyn was subject to taxes amounting to over $800, instead of being free and clear, except the mortgages; the note for $2,000, as originally proposed, had already been made and endorsed. The question came up as to who should pay the taxes, and it was then agreed that the amount of the taxes should be deducted from the $2,000 and a new note should be given for the balance, with the understanding that Oulton should take care of the chattel mortgage when it became due, and thereupon the first note for $2,000 was canceled and the note in suit was made, endorsed and delivered to plaintiff, who acted as the attorney for Oulton in the transaction, and plaintiff delivered the note to his client, Oulton.

Soon after the note was delivered plaintiff, at Oulton’s request, advanced him three hundred dollars on the note for the purpose of paying off certain debts against the hotel property, and subsequently, early in September, he advanced Oulton the further sum of $750 thereon, only $600 of which was applied toward the payment of the chattel mortgage.

We have carefully examined all the evidence in this case, and have come to the conclusion that the appellant has failed to present evidence sufficient to sustain a verdict of a jury in favor of his contention. It is possible that if the original arrangement had been carried out to give the note for $2,000 to pay the chattel mortgage for that amount, there might have been some basis for defendant’s contention; but that arrangement was altered; the amount of the taxes on the Brooklyn real estate was deducted from the amount of the note originally proposed to be given, and the note was only given for $1,128.86. This amount was insufficient to discharge the chattel mortgage, and yet, according to defendant’s contention, unless that note, or its proceeds, were used to pay off the mortgage, he was not liable on it as endorser. If defendant’s contention is correct, then, unless Oulton could raise the difference in cash between the amount of the note and the amount of the mortgage, so as to pay off the mortgage when it became due, the note was without value to him. It is also to be borne in mind, as strongly militating against defendant’s position, that the mortgage became due in August, while the note did not mature till the following Hovember.

Plaintiff testifies that there was no such agreement as defendant claims. Mr. Wood, who had a claim against the hotel property, testifies: “ There had been an agreement made that Mr. Oulton should receive a note of $2,000 to pay off a mortgage that would be due in about three months on this hotel property. * * *■ The question came up who was to pay the taxes. Mr. Oulton said he could not; Mr. Parker said he would not, but he said it could be deducted from this note, and he would take a note for the difference, with reference to the taxes, the $800 taxes. * * * So I told him I would have another note made out. * * * The conversation was, this mortgage on the hotel property in Hew York would become due in about three months, and this note was given to pay that mortgage when it became due. * * * There was a chattel mortgage of $2,000 on the property. The proceeds of that note was to pay it. Oulton was to have the mortgage discharged, and Miss Everett was to get the money to have it done with, instead of doing it at the time. There was a mortgage of $2,000 that Miss Everett was to discharge, and did not, but gave this note for that purpose. When we found there was $800 of taxes on the property, which was represented to be free and clear, excepting the first mortgage, Mr. Parker suggested we take it out of the $2,000 and make the note $1,100, with the same endorsements, and that would be satisfactory.”

Miss Everett testified that this note “ was to be used for no other purpose than paying off this mortgage of $2,000.”' On her cross-examination, however, she stated that she could not tell what the transaction was, and had no recollection of what the contract was on that occasion, her father having acted for her; so that her evidence was entitled to little or no weight.

The defendant McLean was not present at the closing of the exchange.

General King, one of the counsel for the defendant herein, was present at the closing, acting as attorney for Mr. Wood. He testifies that at the closing Mr. Wood presented the $2,000 note. Th'en, there was something said about taxes, and Mr. Parker said 1 you can take the taxes out of that note and give a new note.’ Then, the further conversation went on in regard to the payment of the $2,000 chattel mortgage on the property in Park Eow, Hew York, and Mr. Parker said ‘ give a new note for the difference between them, and we will take up that mortgage.’” * * *

“ Q. Was the note made as suggested? A. The note was made as suggested.” On cross-examination he testified, inter alia: “ Q. Oulton had the right to get money to pay the mortgage ? A. He might pay it out of the note as he pleased ; I don’t think there was any restriction on that.

“Q. Then Oulton had the option ? A. I don’t know about that; if a man has a note he can do what he pleases with it.

“ Q. Then he could go where he pleased to get the money; there was no restriction about where he was to go ? A. That note was to be applied to the payment of the mortgage; that is what was agreed.

“Q. So far as you know, the understanding was Oulton could go where he pleased to get money on the note to pay the mortgage with? A I understood the agreement was this note was to be applied to the payment of the mortgage.”

Mr. Oulton testified : “ The note was given to me for so much money, and I was to take care of the mortgage.”

We fail to see in the foregoing testimony (which is substantially all that relates to any agreement as to the restriction of the use of the note), taking it altogether, any evidence to sustain defendant’s contention. Had a jury found in his favor, we think it would have been the duty of the court to set it aside as against the weight of evidence.

We think the evidence clearly shows that the arrangement was that the amount of the taxes was to be deducted from the amount of the note for $2,000 originally proposed to be given, a new note was to be given for the difference (being the note in suit), and Oulton was to take care of the mortgage when it became due.

The judgment and order denying motion for new trial should accordingly be affirmed, with costs.

Clement, Ch. J.

(dissenting)—The defendant claimed that he endorsed the note in suit as an accommodation, and on the condition that the note or its proceeds should be applied on account of a chattel mortgage for $2,000, held by a third party. The maker of the note testified that it was delivered to the plaintiff, as the attorney of Mi’. Oulton, on the same condition. Two witnesses testify to the same agreement; John Wood and Horatio C. King. The witnesses for the defendant were subjected to a long cross-examination, but they adhered in the main to their first statement. Plaintiff and Mr. Oulton denied that there was any agreement or condition as to the use of the note or its proceeds.

If Mr. McLean had personally made the arrangement with O niton, he could defend without proof of injury, because he (McLean) though an accommodation endorser, was a party to the agreement. Bookstaver et al. v. Jayne, 60 N. Y., 146, 150.

There is proof in this 'case, or offer of proof, that McLean endorsed the note on a condition, and that Oulton and Parker received the note with notice of the condition. I think that McLean, without proof of injury, could defend on the ground that Oulton had diverted the note. The law would be tlie same as in case a direct agreement had been made between them.

I am also of opinion that McLean could defend on the ground that the maker (Miss Everett) had been injured by the diversion of the note. She, if sued, could set up the diversion as a defense, and not by way of recoupment or counterclaim. If the principal could succeed on such a defense, the surety had the same right. If Miss Everett has not been injured, it is incumbent upon the plaintiff so to prove. Rochester v. Taylor, 23 Barb., 18. Whether she collected her chattel mortgage for $10,500, which was subordinate to the first mortgage of $2,000, does not appear in the case, but it is shown that the $2,000 first mortgage was foreclosed.

The respondent asks an affirmance on two grounds: The first claim is that paroi testimony was inadmissible to prove the condidition. There are many authorities to the contrary, and sustaining the right of the defendant so to do. Bookstaver v. Jayne, 60 N. Y., 146; Garfield National Bank v. Colwell, 57 Hun, 169; 32 N. Y. State Rep., 929; Seymour v. Cowing, 1 Keyes, 532; Pittsburgh Steel Co. v. Buckley, 51 Supr. Ct., 342.

The maker of a note can always, except as against a holder in good faith, show a failure of consideration, and when a note is diverted the consideration fails.

The second claim of the respondent is that there was no proof of an agreement as to how the note was to be used, and that the arrangement between the parties related solely to the proceeds. The agreement no doubt related to the proceeds and not to the note itself, but Mr. Oulton had no right to apply to Mr. Parker or to any other person to discount the note for the express purpose of using the proceeds contrary to the agreement under which he received it, and Mr. Parker knew all that had taken place when the note was received. In this case the diversion of the proceeds was a diversion of the note.

In discussing the facts of the case I have assumed the truth of the testimony of the witnesses for the defendant, for the reason that a verdict was directed in favor of the plaintiff. On the whole case the questions of fact should have been submitted to the jury.

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

Judgment and order affirmed, with costs.


author: Clement, Ch. J.

text:
    The People ex rel., The Lewis & Fowler M’f’g Co., App’lt, v. John C. McGuire, Registrar of Arrears, Resp’t.

      (City Court of Brooklyn,

      General Term,

      Filed December 22, 1890.)

    1. Taxes—Cancellation of sale.
    Where a lease has been delivered to the purchaser at a tax sale mandamus does not lie to compel a cancellation of the sale, as the lessee is not before the court and has no redress against the city.
    2. Same—Laws 1883, chap. 114.
    Persons holding tax leases are not bound to come in under a notice pursuant to § 1 of chap. 114, Laws 1883, and prove the validity of their leases.
    8. Same.
    Relator’s property was sold in 1876 for unpaid water rates and a sewer assessment and a lease was given to the purchaser. The assessors pursuant to chap. 114, Laws 1883, fixed and certified an amount to be assessed in lieu of all taxes, etc. On motion for a mandamus to have the sales can-celled, Held, that all that relator was entitled to was the entry of a memorandum that as between him and the city the water rates and assessment were included in the assessor’s certificate.
    Appeal from order denying motion for a writ of mandamus,

      David Barnett, for app’lt; Almet F. Jenks, for resp’t.
   Clement, Ch. J.

This was an application for a mandamus to compel the registrar of arrears of this city to cancel, discharge and mark paid, canceled and discharged upon the records in his office, the water rates of the years 1870 and 1871, and a sewer assessment on premises owned by the relator, and also to cancel alleged, sales for their non-payment, and the certificates granted and issued thereupon. The property in question was sold in 1875 to one D. H. Goodrich, and leases were issued to him. It is not denied by the respondent that the sales for the unpaid water rates and sewer assessment were invalid, but this admission does not bind Mr. Goodrich. The assessors, pursuant to chap. 114 of the Laws of 1883, fixed and certified to the registrar of arrears an amount to be assessed upon the property of the relator, in lieu of all arrearages, which included all taxes, assessments and water rates unpaid for which sales had been made, and which sales were, for any reason, invalid. The court, at special term, denied the application for the writ of mandamus, and the relator appeals.

We are of opinion that the relator was not entitled to all the relief asked for. He was not entitled to a mandamus commanding the registrar to cancel the sale, for the reason that leases had .been given to the purchaser, and by § 21 of title VIII of the charter of 1873, which was in force at the time of the sales in question, the registrar of arrears was bound to keep a record of all sales made for assessments, taxes and water rates. It is sought by this proceeding to compel the registrar to remove from his books the evidence of the sales, in a proceeding where the parties who "hold the leases have no opportunity to be heard. We do not think, as claimed by the counsel for the appellant, that the rights of parties who held tax leases were affected by the notice given under § 1 of chap. 114 of the Laws of 1883. The assessors were required to publish a general notice “ requiring the owner or owners of all land in said city affected by any arrearages of taxes, assessments or water rates, and all other persons having any interest in or lien upon such lands, to "present in writing to said board, within ninety days after the passage of this act, their objections to any tax, assessment or water rates, so in arrears, and any reason why any part of such arrearages should be reduced or remitted.” Parties holding tax leases were not bound to come in under such a notice and prove the validity of their leases.

It is contended that the cases of the People ex rel. Townshend v. Cady, 19 J. & S., 316, and Clementi v. Jackson, 92 N. Y., 591, are in point, but in so far as in this proceeding it is sought to cancel the tax leases, we think that they have no appplication. In the Clementi case, supra, a new tax had been levied in place of an invalid one on which a.sale had been made. Glementi sought to compel the registrar to receive the new tax in which the purchaser had no interest. In the case of the People ex rel. Cooper v. Registrar of Arrears, 114 N. Y., 19; 22 N. Y. State Rep., 158, Judge Follett says: “ Mandamus is the proper remedy to compel the defendant to receive the taxes and'cancel the sale, and the purchaser not having received a conveyance is not a necessary party thereto.”

We deduce from the foregoing decisions the principle that .the property owner may pay a tax or assessment, even though the "premises have been sold for the non-payment of such tax or assessment, provided the city cannot show, as against the .property owner, that the sale is valid. If no lease has been given, the sale may be canceled, because the purchaser is simply an assignee of the tax. If the lease has been delivered, the sale cannot be canceled, because the lessee is not before the court, and because he has no redress against the city. Coffin v. The City of Brooklyn, 116 N. Y., 159 ; 26 N. Y. State Rep., 421.

The relator was entitled to have entered on the records of the registrar of arears a memorandum showing that, as between the relator and the city, the water rates and the sewer assessment were included in the certificate of the board of assessors. Such an entry the relator is entitled to, and no more, and the books of the registrar of arrears should otherwise remain as they are.

The order denying a mandamus should be reversed, and the motion granted, without costs, in the form suggested in this opinion.

Osborne, J., concurs.


author: Osborne, J.

text:
    William H. Curtin, Resp’t, v. Edward J. Curtin, App’lt.

      (City Court of Brooklyn,

      General Term,

      Filed December 22, 1890.)

    Evidence—Cboss-examination.
    In an action for moneys loaned and disbursed for defendant and upon assigned claims against him, it is error to disallow questions on cross-examination of plaintiff touching the circumstances .attending such assignments and which if allowed might bring out matters material to the defense or which tend to weaken the force of plaintiff’s direct testimony.
    Appeal from judgment in favor of plaintiff entered on the report of a referee.

      Horace Craves, for resp’t; A. J. Spences', for app’lt.
   Osborne, J.

Plaintiff brought this action against the defendant, his brother, to recover, firstly, for a balance of moneys alleged to have been loaned and disbursed by him for the defendant ; secondly, for a balance of moneys alleged to have been loaned by Margaret. Curtin, the mother of the parties, to defendant, and alleged to have been assigned by her to plaintiff, and, thirdly, for a balance for goods sold by one Birkett to defendant, and alleged to have been assigned by Birkett to plaintiff.

Defendant, by his answer, denied said indebtedness and the alleged assignments thereof by Mrs. Curtin and Birkett to plaintiff.

The issues were tried before a referee who has found for the plaintiff for the full amount of his claim.

We think this judgment should be reversed, for the reason that, by the rulings of the referee, to which exceptions were taken, the defendant was substantially deprived of his right to cross-examine the plaintiff on material points.1

Defendant sought to show, while cross-examining plaintiff, that Margaret Curtin, the assignor to plaintiff of one of the claims in suit, was so old, feeble and infirm that she did not understand what was the import or effect of her alleged assignment to plaintiff. The following questions were put to plaintiff, objected to, ruled out, and exception taken:

Q. “ Has your mother been able to walk any considerable distance in the past two years without assistance ?”

Q. “Has she been able to come out of the house, to your knowledge, during the last week ?”

The assignment from Mrs. Curtin having been introduced in evidence, plaintiff was asked:

Q. “ Did you ask your brother, C. J. Curtin, before you went into the house, to be there that evening for the purpose of witnessing this assignment ?”

Q. “ Same question asked as to Jennie Curtin ?” (the other subscribing witness.)

Q. “ Did your mother tell you, at the time of the execution of this assignment, or at any time before that, that the defendant had some account against her, or to that effect?”

Plaintiff having testified that he had conversations with his mother prior to the execution of the assignment, he was asked:

Q. “ Did they relate to anything more ? ”

Plaintiff was also asked if he was present when his mother acknowledged the assignment; whether he was present at the time his brother signed the acknowledgment; whether he saw his brother write his name to the acknowledgment. All these inquiries were ruled out and exceptions taken to the rulings.

Plaintiff and defendant were co-executors of their father’s estate. While plaintiff was testifying to the items of his mother’s alleged account, he testified in reference to an item of ten dollars, “ I considered it as money loaned to my brother.” This question was then put: “ Q. It was money advanced by you as executor, as much your brother’s as yours? Objected to. Objection sustained. Exception.”

With reference to an item of forty-four dollars cash loaned November 11, 1885, the plaintiff was asked: “ Does your check-book show that you drew any money out of bank November 11, 1885 ? Objected to. Objection sustained. Exception.”

A paper was shown to witness which he testified was in his handwriting. He was asked: Q. “Is this a statement of the money that you acknowledged that you paid out on your father’s estate ? ” “ Q. For what purpose did you make out this statement? ” “ Q. Did you pay your brother on the 4th of February, 1886, the sum of $29.89 ? ” “ Q. I call your attention to the item in this statement, 1 G\ Mohr, driver, fifty dollars,’ is that the amount that was paid the driver? ”

All those questions were ruled out and exception taken to the rulings.

We think we have cited exceptions enough to the rulings of the referee that should be sustained to entitle defendant to a new trial, and the above form only a small portion of the questions that were erroneously excluded. We cannot assume that defendant was not injuriously affected by these rulings. All of the questians cited above were pertinent and material on the cross-cxami- ~ " might have brought out matters material to the defense, or tending to weaken the force of plaintiff’s direct testimony.

We are accordingly of the opinion that the judgment should be reversed and the order of reference vacated, with costs of this appeal to defendant to abide the event.

Clement, Ch. J., and Van Wyok, J,, concur.


author: Van Wyck, J.

text:
    Myron C. Rush, Resp’t, v. Arnold H. Wagner, App’lt.

      (City Court of Brooklyn,

      General Term,

      Filed December 22, 1890.)

    •Contract—Building—Charge.
    In an action upon a building contract it appeared that the specifications provided that "all flooring to be laid smooth and level and free from knots.” The trial court refused to charge that this mqant free from all kinds of knots, hard or soft, and charged that it did not mean entirely free from knots, held, error, and that it should have been left to the jury to decide whether the khotty condition of the flooring was a slight and trivial violation of the contract or a material one.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.

      William Sullivan, for resp’t; Chas. J. Patterson, for app’lt.
   Van Wyck, J.

This action was brought to recover an alleged balance of $8,674 upon a building contract of $12,874. One of the defenses was that plaintiff had not performed his contract; The plaintiff had a verdict in his favor. The law is well settled in this state that where a contractor in good faith substantially performs a building contract, he can recover the same, less the just deductions for slight or trivial defects or omissions. Crane v. Knubel, 61 N. Y., 645; Phillip v. Gallant, 62 id., 264; Glacius v. Black, 50 id., 145; Johnson v. DePeyster, id., 666 ; Woodward v. Fuller, 80 id., 312; Woelreich v. Fettretch, 21 N. Y. State Rep., 56.

The specifications contained the following clause: “ All flooring to be laid smooth and level and free from knots.’’ We think these words meant free from all kinds of knots, including soft and hard ones, and that the trial court erred in refusing to so charge, and in affirmatively charging that it did not mean entirely free from knots. The chief contest at the trial was as to the number of knots in the flooring, the testimony for the plaintiff tending to show that they were2 not numerous, and that for the defendant that they were very numerous. There were knots in this flooring in violation of this specification that the flooring should be free from knots. To what extent it was knotty was for the jury to determine from the evidence, and then decide whether such knotty condition was merely a slight and trivial violation of the contract or a material violation thereof which would lead them to conclude that the contractor (plaintiff) had not substantially performed his contract Without further expression herein upon the other exceptions, and the motion for new trial, the judgment and order appealed from, in our opinion, should be reversed and a new trial ordered, with costs to abide the event

Osborne, J., concurs.


text:
    Gustavus A. Brett et al., Resp'ts, v. Grahams Polley, App’lt.

      (City Court of Brooklyn,

      General Term,

      Filed December 22, 1890.)

    Brokers—Commissions—Evidence.
    Plaintiffs, who are ship brokers, brought together defendant’s agent and G-. & Co., and a charter party was signed whereby defendant’s_ steamer was chartered by G. & Co. The charter party contained a provision for commission of five per cent, payable by the owner; and payment of five per cent, freight brokerage payable to by charterers plaintiffs. In an action for brokerage, Held, that the charter party was admissible in evidence, and the jury could infer therefrom an employment of plaintiffs by defendant’s agent.
    Appeal from judgment in favor of plaintiffs entered on verdict, and from order denying motion for a new trial.

      Goodrich, Beady & Goodrich, for resp’ts; John Berry, for app’lt.
   Clement, Ch. J.

On May 14, 1889, Capt. Edwin P. Little-field, as agent of the defendant, who was the owner of the steamer Raleigh, and R. R. Gibbs & Co. signed a charter-party, whereby the steamer was chartered by the said Gibbs & Co. for trade between the United States and the West Indies for six months, at $3,000 per month. In the writing are these words: “ Commission of five per cent on the estimated amount of charter payable by owner, and a freight brokerage of five per cent is due and payable by charterers on signment hereof to G. A. Brett, Son & Co.” The plaintiffs were ship brokers, and brought the parties together who signed the charter-party in their office, and were to receive by its terms five per cent commission, and this action was brought to collect the same.

We think that the charter-party was properly admitted in evidence. Though the plaintiffs were not parties to it, yet it contained evidence of their employment by the agent of the defendant. Suppose a broker for the sale of real estate is applied to by a party desiring to buy a certain piece of property, and the broker sends for the owner to meet the party at his office, and a contract is drawn for the sale, and in such contract it is provided that the owner shall pay the broker one per cent commission, we think that a jury, from the contract and the surrounding circumstances, could infer an employment of the broker by the owner at the time of signing the ' contract, though nothing was said about the commission. If the plaintiff sued R. H. Gibbs & Co., the charterers, for commissions, their defense would be that, in the presence of one of the plaintiffs, they and the agent of the defendant agreed that the defendant should pay the commission. It is not necessary to invoke the principle laid down in Lawrence v. Fox, 20 N. Y., 268. The contract was before the jury, and they could infer therefrom, and from the other facts in the case, an employment of plaintiffs by the captain, as agent for the defendant.

Judgment and order denying new trial affirmed, with costs.

Osborne, J., concurs.


author: Yan Wyck, J.

text:
    Nelson J. Gates et al., Rec’rs, Resp’ts, v. William Vincent, App’lt.

      (City Court of Brooklyn,

      General Term,

      Filed December 22, 1890.)

    Partnership—Agreement to set off individual debt of partner. .
    An agreement by one partner to discharge an indebtedness due his firm by setting off his individual liability against it is not binding on the firm unless made with the consent of the other partners. The mere fact that such partner gave the book-keeper a memorandum of the transaction, which was entered on the books without the knowledge of the other partners, is not sufficient to show that they consented.
    Appeal from judgment in favor of plaintiffs, entered on verdict directed by the court, and from order denying motion for a. new trial.
    This action is brought by receivers of an insolvent copartnership, M. J. Gaffney & Oo., to recover an alleged indebtedness due such copartnership from the-defendant.
    On January 18, 1889, Michael J. Gaffney & Co. owned and held the demand set forth in the complaint.
    On that day, and before the plaintiffs were appointed receivers, Gaffney, the senior partner (who owned two-thirds of the partnership business, assets and property, and was its financial manager), without the assent or knowledge of his copartners, used or canceled said demand by applying it in payment of an individual debt due from himself to the defendant, and thereupon gave in the firm’s name receipt for such payment.
    Both of the other partners testified that they had no knowledge whatsoever of the transaction, and that they never assented or approved of it. Mr. Gaffney does not pretend that he had any authority to make the settlement in advance, or that he communicated what he had done to either of his partners. The only evidence in the case is, that he left a memorandum of the transaction with the book-keeper .and that some sort of an entry was made in the books.

      Putney & Bishop, for resp’ts; G. L. Lyon, for app’lt.
   Yan Wyck, J.

This action was brought to recover $139.50 for coal admitted to have been sold to defendant by the firm of M. J. Gaffney & Go., composed of Gaffney, Patterson and Hobby. Defendant pleaded payment and to establish the same proved that Gaffney, one of the partners, owed him the same amount and that he and Gaffney agreed that the one claim should pay the other.

An agreement made by one partner to discharge an indebtedness due his firm by setting off his individual liability against it is not binding upon the firm unless made with the consent of the other partners. Bates on Partnership, §§ 347, 410,1046; Evernghim v. Ensworth, 7 Wend., 326; Geery v. Cockroft, 33 Supr. Ct., 146. • We have carefully examined the testimony in this case and are satisfied it would not sustain or justify a verdict that the other-partners of M. J. Gaffney & Oo. consented to or had knowledge of the alleged arrangement between Gaffney and this defendant. Bov this reason we think the trial court properly directed a ver•dict for plaintiff.

Judgment and order appealed from must be affirmed, with costs.

Osborne, J., concurs.


text:
    Thomas Quinn, Resp’t, v. The Atlantic Avenue R. R. Co., Appl’t.

      (City Court of Brooklyn,

      General Term,

      Filed December 22, 1890.)

    1. Negligence—Railroads.
    Plaintiff was driving an empty coal cart on defendant’s tracks, and while turning out to allow a car to pass the rear of his cart was struck by the car, and he was thrown out and injured. He testified that he had looked for the car shortly before, and was listening for it up to the time he became aware of its approach. The car driver testified that he saw plaintiff when thirty-five feet distant, and called to him, put on the brakes fifteen feet away, but was unable to avoid a collision on account of the down grade and condition of the tracks. Held, that the questions of negligence were properly submitted to the jury.
    .3. Same—Charge.
    Where the court has already in substance charged as to the duty of plaintiff to turn out of the track, and that a failure to do so would constitute contributory negligence, it is not error to refuse to charge that, if plaintiff wilfully obstructed the passage of the car, he would be guilty of contributory negligence.
    Appeal from judgment in favor of plaintiff, entered on verdict, ;and from order denying motion for a new trial.
    Tracy, MacFarland, Boardman & Platt, for app’lt; Thomas F. Pearsall, for resp’t.
   Osborne, J.

Plaintiff brought this action to recover damages for injuries sustained by the alleged negligence of a driver of one ■of the defendant’s street cars. On December 5, 1889, plaintiff was driving in an empty coal 'cart down Twentieth street, between Seventh and Eighth avenues, in the right hand, or northerly track of defendant’s road ; he was followed, about sixty feet in the rear, by another empty coal cart. The last mentioned cart turned out of the track, and when the car in question got within ■about twenty feet of plaintiff, he then, as he testifies, became aware of its proximity. At that time another car was passing plaintiff’s cart on the left hand or southerly track, and plaintiff testified that he waited for that car to pass before turning out to the left hand track, as there was not room enough for him to turn out on the right, although it appears that he was in error •on that point. While in the act of turning out defendant’s car struck the tail of plaintiff’s cart with such violence as to upset the cart and throw plaintiff out on the street, causing the injuries for which he here seeks to recover damages. Plaintiff further testified that he saw the car in question on the stand at Ninth avenue when- he passed there; that he looked back at Eighth avenue to see if it was approaching, and that he was listening for it up to the time he first became aware of. its approach.

Defendant’s driver testified that when he was from thirty-five to forty feet of plaintiff, he called out; that when he was twenty feet away, his horses being on a trot, he put his brakes on fully, and. that when about fifteen feet away he had gotten his horses down to a walk, but that, owing to the down grade and the slipperiness of the track, he was unable to avoid a collision with plaintiff’s cart. The jury found a verdict in favor of the plaintiff, and from the judgment entered thereon, and from the order denying a motion for a new trial, defendant appeals.

It seems to us, from a careful review of all the evidence, that it was properly for the jury to decide whether plaintiff’s injures were caused by the negligence of the defendant’s driver, and also whether the plaintiff was free from contributory negligence. These questions were submitted to the jury by the learned trial judge in a charge in which he clearly laid down the law applicable to cases of this character. The jury were charged that “it was plaintiff’s duty to be attentive not only to what was in front of him, but also to be attentive to what was taking place in the rear. It was his duty to look back occasionally to see whether a car was approaching or not, and if he saw a car approaching, or was warned of a car approaching, then it was his duty, seasonably, and as soon as he could properly, to turn off the track, so that the driver of the car would not be compelled to stop or be delayed, and the driver of the car had a right to assume that Quinn would turn off.” This, certainly, was a clear exposition of the duty that the law required of plaintiff; the duty of the driver was equally well defined. The jury having found on these questions in favor of the plaintiff, we can see no reason for interfering with the verdict.

The learned counsel for the appellant requested the court to charge that 1 If Quinn wilfully obstructed the passage of the car he is guilty of contributory negligence, and cannot recover.” A question arose as to the meaning of the word “ wilful,” as there used, which counsel proceeded to interpret, and thereupon the court refused so to charge. The court had already substantially charged as to the duty of the plaintiff to turn -out of the track,, and that a failure on his part to perform that duty would constitute contributory negligence. This, we think, more than covered the defendant’s request, as it did not limit plaintiff’s duty to-a “ wilful ” obstruction of the passage of the car.

There was no evidence in the case as to the condition of Twentieth street on the right hand side of the track, and the request of the defendant’s counsel to charge that the presumption is that the condition of the roadway was sufficient and competent to enable plaintiff to turn to the right was properly refused. No such question was involved in the case, and the court was not, therefore, called upon to charge as requested.

The other exceptions in the case are not tenable and do not seem to call for any discussion.

Judgment and order denying motion for new trial affirmed; with costs.