text:
    James M. Angell, App'lt, v. Barnet N. Hill, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1892.)

    Trespass—Animals—Adjoining owners.
    In an action for damages to plaintiff’s lands by defendant’s cattle, it! appeared that their lands were divided by a non-navigable stream; that the cattle crossed the stream on to plaintiff’s land. There was no proof that g, fence between said lands was ever either located or divided by fence viewers or by agreement. Held, that in view of this fact the proof failed to establish a defense to the action.
    Appeal from a judgment of the Otsego county court, reversing a judgment rendered in favor of the plaintiff by a justice of the peace of that county.
    The action was for trespass by defendant’s cattle going upon/ the plaintiff’s land, and injuring his crops of corn. The plaintiff’s lands were situated in the town of New Berlin, Chenango county. The defendant’s, which adjoined the plaintiff’s, were situated in the town of Pittsfield, Otsego county. The plaintiff’s lands are bounded on the east by the Unadilla River, and the defendant’s on the west by the same stream. The Unadilla River is= not a navigable stream. The defendant’s cattle crossed from his premises, passing through the stream on to the plaintiff’s lands. There was no evidence that the fence viewers had located or divided any fence between the parties, nor that there had been any location or division of any partition fence made by the parties.

      J. G. Holmes and H. H. Harrington, for app’lt; E. J. Arnold and O. F. Matteson, for resp’t.
   Martin, J.

This action was for damages to plaintiff’s field of corn, committed by the defendant’s cattle in the years 1886 and 1887. It was tried in a justice’s court, where the plaintiff bad judgment for twenty dollars damages, with costs. From that judgment an appeal was taken to the county court, and the judgment reversed. The grounds of such reversal are unknown, as no opinion or memorandum was made by the learned county judge.

The respondent, however, seeks to uphold the judgment upon the grounds: 1. That it was the duty of the plaintiff to build and maintain a proper partition fence between the lands of the parties who were adjoining owners, and having failed, the defendant was not liable for the injury to the plaintiff’s crops. 2. That the justice erred in his rulings upon the admission and rejection of. evidence.

The appeal book contains no proof that a fence between the lands of the parties was ever either located or divided, pursuant to the provisions of the statute, then in force, relating to division fences. (2 R. S., 8th ed., 903, § 30, et seq.) Nor was there any •evidence showing any location or division of a partition fence between the parties by agreement or otherwise.

The owner of domestic animals, such as horses, cattle, sheep, etc., was at common law bound to keep them safely on his own property. Stafford v. Ingersol, 3 Hill, 38; Van Leuven v. Lyke, 1 N. Y., 515, 517., Where the cattle of one of two adjoining proprietors are found trespassing upon the land of the other, the owner of the cattle, to excuse himself, must show not only that the fences which the other proprietor was bound to maintain were out of repair, but also that the cattle passed over such defective fences. Deyo v. Stewart, 4 Den., 101. “Where parties are jointly •bound to maintain a partition fence, and neither is severally bound, •either by agreement or by statute, to maintain any particular part, the defectiveness of such fence is no defense to an action of trespass by the cattle of one upon the other, and the parties are remitted to their common law rights and obligations as to keeping their cattle from straying beyond their own land. * * * In order to escape liability for trespass committed through the insufficiency of such fence, it must appear to have been divided either •according to the statute or by a binding agreement, so as to throw upon each owner the obligation of maintaining some particular part of it, and that the defect, by reason of which the injury arose, was upon the plaintiff’s part.” 7 A. & E. Ency., 895; 1 Cow., 79, note a; Little v. Lathrop, 5 Greenleaf, 356; Sturtevant v. Merrill, 33 Me., 62; Knox v. Tucker, 48 id., 373; Bust v. Low, 6 Mass., 100.

These authorities render it quite obvious that the proof was insufficient to establish a defense to the plaintiff’s action, and that the justice properly awarded him a judgment for the damages he sustained. ,

The only remaining question we need consider is- whether the justice committed any error in his rulings as to the admission of -evidence which required the reversal of the judgment. We have •carefully examined each of the rulings made, and, while it may be that some of them were not technically correct, still we find none that seem to have affected the merits. Hence, under ■ the rule applicable to appeals of this character, the judgment ought to have been reversed on account of such rulings. Code, § 3063; Olendorf v. Sullivan, 36 St. Rep., 74; Greene v. Walton, 59 Hun, 105; 35 St. Rep., 881; Morehead v. Brown, id., 766; Griffin v. Jackson, 36 id., 111; Bump v. Daheny, id., 116; Tuttle v. Dennis, 58 Hun, 39; 33 St. Rep., 445; Lockwood v. Lockwood, 38 id., 601.

. We think the judgment of the justice was proper, sustained by the evidence, and that there were no rulings which authorized a reversal.

Judgment of the county court reversed, and judgment of the justice affirmed, with costs to the appellant

Hardin, P. J., and Merwin, J., concur.


source: Caselaw Access Project

author: Macomber, J.

license: Public Domain

text:
    Jonathan L. Gould, App’lt, v. George G. Patterson, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Justices courts—Title to land—Code Civ. Pro., § 2956.
    In an action for trespass in justice’s court the answer contained a general denial and alleged ownership and possession in defendant. Defendant did not give an undertaking and the action proceeded to judgment. The record on appeal did not show that the title to real estate came in question on the trial, but plaintiff’s testimony on the new trial in county court showing that the title did come in question, the court dismissed the case under § 2956 of the Code. Held, error; that upon the return of the justice it was incumbent on the county court to hear such evidence as was offered and to pass upon it, notwithstanding any rights or privileges which were secured to the defendant by the provisions of the Code relating to trials before justices of the peace, but which have been waived by his omission to file an undertaking.
    Appeal by the plaintiff from a judgment of non-suit ordered •by the county court of Livingston county, entered September 30, 1890, in a case appealed to that court for a new trial' by the plaintiff from a judgment of twenty dollars in his favor recovered before a justice of the peace in an action brought by him against the defendant for trespass.

      George W. Daggett, for app’lt; E. G. Olney, for resp’t.
   Macomber, J.

This action was trespass, and was brought in .a justice’s .court, in the county of Livingston, where, upon a trial by jury, a verdict of five dollars was rendered for the plaintiff, and thereupon, under the statute, treble damages were awarded by the court, and judgment for that sum was accordingly entered, together with five dollars costs. The defendant appealed to the county court, but such appeal was subsequently dismissed, and nothing arising upon such appeal appears to be material to any ■question existing in the record before us. The plaintiff also appealed and asked for a new trial in the county court, which was accordingly had. On such trial in the county court, a jury being waived, the county judge, at the close of the plaintiff’s case, dismissed the complaint upon the ground, that under the plaintiff's ■own showing title to real estate came in question; holding, as we infer, that as, in like circumstances, the justice of the peace had not jurisdiction, so on appeal the county court likewise had no jurisdiction to try that issue under § 2956 of the Code of Civ. Pro.

By reference to the pleadings in the justice’s court, it appears that the complaint of the plaintiff alleged that in the month of October, 1889, the defendant wrongfully and unlawfully entered upon the lands of the plaintiff and did then and there, without .the leave of the plaintiff, “ who was in possession and the owner of said premises aforesaid,” maliciously cut down a large number of trees, etc. The answer was first, a general denial; and, secondly, an allegation that the land, upon which were the trees which were alleged to have been cut down and removed by the defendant, was owned by the defendant; that he had been in possession of .the same for upwards of twenty years.

It will thus be seen, that there was an allegation of title in the plaintiff made by the complaint, and, in the answer, a general denial of such title, and an affirmative allegation that such title belonged to the defendant.

By § 2863 of the Code of Civ. Pro. (subd. 2), a justice of the peace cannot take cognizance of a civil action “ where the title to real property comes in question, as prescribed in title 3d of this chapter.”

By §§ 2951 and 2952, which is in title .3rd above referred to, the defendant may, either with or without other matter of defense, set forth in his answer facts showing that the title to real property will come in question. The justice must, thereupon, countersign the answer and deliver it to the plaintiff. The defendant must also deliver to the justice a written undertaking, executed by one or more sureties, approved by the justice, to the effect specially prescribed in the statute.

Under § 2954, if these two acts are done, that is, a written answer made containing such facts and undertaking given, the action, before the justice becomes discontinued.

By § 2955, “If the undertaking is not delivered to the justice, he has jurisdiction of the action, and must proceed therein; and the defendant is precluded, in his defense, from drawing the title in question.”

In the record before us, the defendant failed wholly to avail himself of the provisions of the statutes by which he was enabled, if he saw fit, to oust the justice of jurisciction and have the cause tried either in the supreme court or the county court. Failing in that, he waived all objections to the jurisdiction of the justice, and submitted his rights to that tribunal upon the question in issue raised by the pleadings, even though facts were alleged in the pleadings showing that title to real estate did, in reality, come in question.

The question of title to the real estate upon which the growing trees were was tendered to the defendant by the complaint. It was so drawn that the defendant could set up his own title in the ¡answer, and, on giving the requisite security, oust the justice of jurisdiction; but failing to give the security, he was precluded at the trial from drawing the title in question. Such was tbe provision of the Code of Procedure. Adams v. Rivers, 11 Barb., 390. So much applies, however, only to the proceedings before the justice.

Upon the trial in the county court, the plaintiff’s own testimony' showed that title to real estate did come in question, and accordingly the county judge, acting, apparently, under § 2956 of the Code of Civ. Pro., dismissed the case upon the motion of the defendant’s counsel. Section 2956 is as follows: “ If, however, it appears upon the trial, from the plaintiff's own showing, that the title to real property is in question, and the title is disputed by the defendant, the justice must dismiss the complaint, with costs, and render judgment against the plaintiff accordingly.” The learned county judge, assumed, as we think erroneously, that he was hearing the same case that had been tried before the justice ■of the peace. But there is contained in the printed record before us the return made to the county court by the justice of the peace -of the proceedings before him, and from such record it does not appear that the title of real property was in question and was disputed in that tribunal at the trial. The return, it is true, does not purport to give all of the testimony taken before the justice, nor does it say that it does not contain all of the testimony. The only inference which we can draw from it is that the trial did proceed before the justice of the peace without the question of title to real estate being raised by the plaintiff on his own showing, as it well might have been, notwithstanding the issue raised by the pleadings. The defendant at the trial might have relied .and presumably did rely upon other defenses than that of title, for'he seems not to have raised any question, except by his pleadings, which would tend to oust the justice of jurisdiction.

What, then the important question is, was the duty of the •county court in a case like this appealed from the judgment of the justice for a new trial? The county court has jurisdiction to try questions of title to real estate, and could have tried this case had the action originally have been brought in that court. The fallacy of the learned counsel for the defendant in making his .application for a nonsuit lay in the assumption, which, as above seen, has no existence in the statutes, that the county court was ■obliged to dismiss the case if title to real estate appeared upon the trial there just as though it was acting in the place of the court of the justice of the peace. But we think that upon the return of the justice, which does not show that title to real estate came in question on the trial before him, it was incumbent upon the county court to hear such evidence as was offered, and to pass upon it, notwithstanding any rights or privileges which were secured to the defendant by the provisions of the Code relating to trials of eases before justices of the peace, but which appear to have been waived by his omission to file an undertaking. Code Civ. Pro., § 2955. Any other conclusion, as it seems to us, would enable a defendant, where the pleadings showed that title to real estate might come in question before a justice of the1 peace, to reap all the benefits of the provisions of law for removal of cases without incurring the hazards of giving the undertaking.

If this conclusion is correct, the judgment appealed from should be reversed, and a new trial granted.

Judgment appealed from reversed, and a new trial granted in the county court, with costs to abide the event.

Dwight, P. J., and Lewis, J., concur.


text:
    Francis B. Brewer, App’lt, v. Clarence Delafield, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Justices’ court—Objections to evidence.
    While, as a general rule, the grounds of objection are not required to be stated in trials before a justice of the peace, yet where the trial has been ■conducted by counsel, and certain grounds of objection to the reception of evidence were in fact stated, an objection cannot be raised on appeal for the first, time where it might have been obviated if raised on the trial, and the evidence did not cau.e the rendition of the judgment.

      Appeal by the plaintiff from a judgment of the county court oE Chautauqua county, entered January 5,.1891, reversing a judgment in favor of the plaintiff, recovered in a court of a justice o£ the peace.

      S. W. Mason, for app’lt; 0. B. Oita-way, for resp’t.
   Macomber, J.

The plaintiff, who is the owner of the Westfield gas works, in the town of Westfield, N. Y., recovered a judgment before a justice of the peace for the sum of thirty-seven dollars and costs, for damages done to the plaintiff’s gas pipe, and by the escape of 10,000 feet of gas from a meter, caused, by the acts o£ the defendant or his employees. On appeal by the defendant to-the county court, the judgment of the justice was reversed upon the ground that a question put to the plaintiff’s principal witness, was incompetent

It appeared in evidence that a bill for thirty-seven dollars had. been made out against the defendant; and one Keener, who was. in the employ of the plaintiff, presented it to the defendant, and stated to him that the claim was for breaking the gas mains of the plaintiff three times, and letting gas escape from the gasometer. The witness told the defendant that the amount of the damage was thirty-seven dollars. Thereupon the defendant said that he would attend to the matter as soon as he could get around to it, and' that as soon as he could get something out of the town he would fix it. He made no objection to the bill, either as to. his own liability for any part thereof, or to the amount claimed. Evidence was given that the amount of gas which escaped was-ten thousand feet. Then the following question was asked the witness:

“Q. Was the bill presented a fair value for the damage for those breaks ? Objected to as immaterial and incompetent, and not a proper measure of damages; no foundation laid for making defendant liable for damages, and not within the issues. Objection overruled and exception. A. Yes, sir, it was worth that, and more than that; these damages were done while digging-the ditches for the^water works in Westfield.” The learned county-judge pronounced this evidence incompetent under the authority of Morehouse v. Mathews, 2 N. Y., 514, which holds that, in general, it is .not competent for witnesses to state opinions or conclusions from facts without such facts are known to them, or derived from the testimony of others.

It will be noticed that though many grounds of objection were' stated, this particular ground, relied upon by the learned county-judge, viz., that this was a mere expression of opinion, was not made in the trial court. While it is true that the grounds of the objection are not required, perhaps, to be stated in trials before justices of the peace, yet, where, as in this case, -the defense was conducted by counsel, and certain grounds of objection were; in fact stated which were untenable, and the objection now stated! by the county judge was not in fact made, we think that it is too. late to raise the same upon appeal for two reasons : (1) if it had been made at the trial it might have been obviated, and (2) it is «clear that such evidence did not cause the rendition of the judgment. At the trial there was no dispute over the amount of the bill

The defendant himself was called as a witness, the whole purpose of whose testimony was designed to transfer liability for the •damages from him to a sub contractor by the name of Williams. This leads us to the conclusion that the error which the learned county judge held to be in the record, even if it actually existed, was not of sufficient moment to justify a reversal of the judgment under § 3063 of the Code of Civil Procedure, which provides that the appellate court must render judgment on appeal according to the justice of the case, and without regard to technical errors or ■defects which do not affect the merits.

We think the judgment of the justice of the peace was correct, under the facts disclosed, and that the judgment of the county •court should be reversed.

Judgment of the county court reversed and that of the justice of the peace affirmed, with costs of this appeal in this court and in the county court.

Dwight, P. J., and Lewis, J., concur.


author:
Adams, J.
      Lewis, J.

text:
    The People ex rel. John McMillan, App’lt, v. The Board of Supervisors of Cayuga County, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    ■Town bonds—Reimbursement of town after payment.
    A town by paying its bonds issued in aid of a railroad does not surrender its right to recover of the county the taxes collected from the railroad under chapter 907, Laws 1869. For the purpose of that act the town may be subrogated to the rights of the original bondholders and be held to own the bonds notwithstanding they have been paid.
    Appeal from order of special term, denying motion of the relator for a peremptory writ of mandamus compelling defendant to rescind certain resolutions directing the treasurer of Cayuga county to set apart and pay over certain moneys.
    The following is the opinion of the special term:
   Adams, J.

The facts which are presented upon this motion are undisputed and may be thus briefly stated :

The towns of Brutus, Cato, Ira, Locke, Moravia and Sterling, in the county of Cayuga, have heretofore issued bonds in aid of •certain railroads running through their corporate limits, in accordance with the provisions of chapter 907 of the Laws of 1869, and the acts amendatory thereof. None of these bonds is now outstanding, the towns of Moravia and Locke having paid the last instalment of their bonds in 1876, the town of Brutus in 1882, and the remaining towns in 1888. Such bonds were paid by the respective towns before any moneys realized from the assessment •of such railroads had been paid over to them as contemplated by the acts in question.

On the 21st December, instant, the defendant, at a regular session of its body, adopted certain resolutions directing the treasurer of the county to segregate from the contingent fund the sum of $4,355.06 and to place the same to the credit of such towns proportionally, and pledging itself to pay over the balance due to said towns for taxes received from said railroads within the six years last past, upon .condition that certain suits which had been commenced for the recovery of the sums due such towns should be discontinued, and these are the resolutions it is sought, to have rescinded by the writ asked for upon this motion.

The theory of the relator is that there being no bonds outstanding against any of the towns named, they have lost any right which may have accrued to them by virtue of the acts referred to.

This precise question has never been passed upon, so far as I am able to discover, and it is one which might well claim more careful attention than-1 am able to give it, by reason of the existing necessity for an immediate decision; but within the principle of the authorities cited, where these acts have been considered and construed, it would seem as though the relator’s contention was not well founded.

All these cases tend in one direction, and that is to hold that the object of the legislature was to give to towns which had issued bonds in aid of railroads the absolute right to the moneys received from such railroads for taxes in those towns for the period of thirty years, and this upon the theory that the railroad property thus taxed was created by the towns, and that it was but simple justice to reimburse them from the increased revenue derived from such taxes, and thereby to lighten the burdens which they had assumed.

In the case of Bridges v. Supervisors of Sullivan County, 92 N. Y., 570, it was held that moneys collected from taxes assessed upon railroads thus aided belonged to the towns where they were collected, and if withheld from such towns by the county an action as for money had and received would lie. It is true that this case rested upon the act of 1874, chap. 296, which is somewhat more specific in its provisions than are those under consideration, but in Clark v. Sheldon, 106 N. Y., 104; 8 St. Rep., 537, Earl, J., cites the Bridges case as applicable in principle to cases arising under the statutes of 1869 and 1871, and says: “ The legislature could devote all the taxes imposed upon such railroads to town, village or city purposes ; and this is what it has done."

Again, in the case of Strough v. Board of Supervisors, 119N. Y., 212-219; 28 St. Rep., 967, Andrews, J., uses .this language, in referring to money received by the defendant in the way of taxes-paid by railroads: “ The county applied it, in contravention of the act, towards the discharge of county obligations. It ought in justice to restore it, and make good to the town what it has lost by its unauthorized acts. ' To compel the performance of this duty, an action for money had and received is an appropriate remedy." And the general term of this department has said that the right to compel the county to account for moneys wrongfully applied to its own use, in a case of this character, was not -created by the statutes in question, but “had its foundation in prior statutes of long standing, as well as in the precepts of the common law.” Wood v. Supervisors of Monroe Co., 50 Hun, 1-6; 18 St. Rep., 671.

If, then, the effect of these statutes is to give to the towns an absolute property right in the moneys thus received for taxes within the period of time prescribed thereby, and if, whenever those moneys are applied by the county to the payment of its own obligations, a cause of action arises in favor of the towns for money had and received, it is difficult to see why this remedy •does not continue to exist until barred by the statute of limitations, or until the expiration of the period named in the statutes, provided the towns have not meanwhile been fully reimbursed for the moneys expended in the liquidation of their bonded obligations.

Any other construction would work great injustice; for a town, •as in the present case, might find it very greatly to its interest to meet its bonds before maturity, or before the expiration of the thirty year limit, and having the opportunity to do so, might nevertheless be unable to embrace it without surrendering its privilege to participate in a property right which was created exclusively for the benefit of such town and to enable it to reimburse itself for the aid it had extended in the construction of railroads within its corporate limits. Bridges v. Supervisors Sullivan Co., supra.

My attention has been directed to certain rules of construction, which it is claimed must be violated if any effect is given to the statutes in question other than that contended for by the relator. The obvious answer to this contention is that the construction has already been given by tribunals whose determinations are controlling with this court. The effort here has been, not so - much to ascertain the meaning of the statutes themselves by the application of ordinary rules of construction, as to determine what interpretation they have already received; and if the adjudications herein referred to are correctly apprehended, it is impossible to reach a different conclusion than the one indicated by what has been said, although, as before stated, the precise question in controversy has never been expressly passed upon.

It is further urged that it would be better to allow the question to be litigated in the pending actions than to determine this motion adversely to the relator, as by so doing he might lose his remedy against the county.

But the question has been presented fairly by proceedings instituted by the relator and it must be disposed of as fairly as presented. If this court is in error, its decision can be reviewed and corrected with much less delay and expense to all concerned than would be involved by proceeding in the actions, while provision can easily be made for protecting all rights pending the determination of the appellate court.

The motion must be denied, with ten dollars costs.

S. Edwin Day, for app’lt; Wm. B. Woodin, for resp’t.

Lewis, J.

The facts are fully stated in the opinion of J ustice Adams at special term, and there are sufficient reasons stated in his opinion for -granting the order appealed from.

The appellant contends that as it appears that the bonds have all been paid by the towns, they are not entitled to the benefit of the provisions of chap. 907 of the Laws of 1869, and the acts amendatory thereof.

A distinction is sought to be made between the rights of a town that has promptly paid its bonds as they matured and one that neglected to pay its bonds. Stress is laid upon the language of the act, that it is made the duty of the county treasurer with the money collected from the railroad to purchase the bonds if the same can be purchased at or below par, and if not, he must hold the money, with the accumulated interest, as a sinking fund for the redemption and payment of the bonds. It is true, if a strict construction be given to the words of the statute, that there is an apparent difficulty in applying its provisions to the case where the town has paid its bonds.

The question, when applied to the facts presented, is, as far as we are advised, a new one. We see, however, no reason why the town that has paid its bonds may not be subrogated to the rights of the original holder in the bonds and be held, as regards these acts, to own the bonds, notwithstanding they have been paid.

Equity requires -it, and no injustice is done to the county. It is-required to pay only such sums of money as it has received for the benefit of the town, and which it should have. applied to the payment of the bonds. Had the county obeyed.the commands of the statute the bonds would have been paid out of the money it received for that purpose.

Having failed to do its duty in that regard, the towns were compelled to pay the bonds, and they should be deemed to be the owners and holders for the purpose of receiving the money from the county.

The order appealed from should be affirmed, with ten dollars-costs and disbursements of the appeal.'

Dwight, P. J., and Macomber, J., concur.


author: Lewis, J.

text:
    Charles F. Otis, Assignee, Resp’t, v. Thomas C. Hodgson, Late Sheriff, Appl’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Assignment for creditors—Place of business or residence.
    The provision of the statute requiring the statement in an assignment, for creditors of the place of business or residence of the assignor is directory anchnot mandatory, and a failure to make such statement does not. invalidate the assignment.
    Appeal from an interlocutory judgment rendered at the Monroe special term, December 17, 1891, overruling the defendant’s demurrer to the' plaintiff’s complaint upon the ground of insufficiency.

      Turk & Barnum, for app’lt; O. A. iShuart, for resp’t.
   Lewis, J.

The complaint of the plaintiff alleged that Francis Colvin, on the 16th day of August, 1890, executed and delivered to the plaintiff, by an instrument in writing, a copy of which is hereto annexed as a part of the complaint, a general assignment of his property for the benefit of his creditors; that the-plaintiff accepted the trust, and immediately thereafter entered into possession of the property for the purpose of carrying out the assignment; that the proper inventory and schedules were made out and duly filed; that the plaintiff executed the bond required by law; that it was duly approved and filed; and that .on the 22nd day of September, 1890, the plaintiff being then in possession of the stock of goods, the defendant, with full knowledge of the assignment and of plaintiff’s possession of the property, took forcible possession of the premises where the goods and property were, and took the stock of goods from the possession of the plaintiff, and converted and disposed of the same. That the goods were of the value of eleven hundred dollars, and that plaintiff as assignee was injured in that amount, for which sum he demanded, judgment. The assignment failed to state, as required by the statute of 1888, the residence or business of the assignor. The defendant demurred to the complaint of the plaintiff on the ground that it appeared upon the face of the complaint that it did not state facts sufficient to constitute a cause of action.' The issue of law thus raised came on for trial at a special term of the supreme court That court directed an interlocutory judgment overruling the demurrer, and the defendant appealed therefrom to this court Chapter 294 of the Laws of 1888 provides that every conveyance or assignment made by a debtor of his estate, real or personal, or both, to an assignee for the creditors of the debtor, shall be in writing, and shall specifically state therein the residence and the kind of business carried on by such debtor at the time of' making the assignment, and the place at which such business shall be conducted, and if such place be in a city, the street and number thereof; if in a village or town, such apt designation as shall reasonably identify such debtor. It was held in Taggart v. Sisson, 29 St. Rep., 424; in Mullin v. Sisson, 31 id., 210; in Strickland v. Laraway, 29 id., 873, all general term decisions, that the failure to state the residence and the business of the assignor did not invalidate an assignment. Justice Williams, in a well considered opinion, reported, in the 9 N. Y. Supplement, 759, holds to the same effect.

The construction given to this statute by the foregoing cited cases meets with our approval.

Justice Daniels in a case arising in Orleans county, not reported, held that such omission did not invalidate an assignment. Judge Bookstaver, in Bloomingdale v. Seligman, 22 Abb. N. C., 98; 19 St. Rep., 64, held otherwise.

The statute, we think, should be construed as directory and not mandatory.

The plaintiff was in possession of the property by the act and consent of the assignor claiming to hold it for the benefit of cred-¿tors. His possession of the property was sufficient to entitle him. to maintain the action as against every one but the real owner or those claiming lawfully under him. A bailee of chattels may maintain such an action, even though he be merely a gratuitous bailee. The finder of goods may recover their value from a wrongdoer who subsequently converts them. Mathews v. Harsell, 1 E. D. Smith, 393.

We think the weight of authority goes to sustain the plaintiff’s •contention, and that the judgment appealed from should be .affirmed, with costs, with leave to the defendant to answer on payment of costs.

Dwight, P. J., concurs; Macomber, J., not sitting.


text:
    Charles W. Henning and Louisa Henning, Resp’ts, v. Seymour Bennett et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Deed—Boundaries—“Wear of creek.”
    The deed to plaintiff from the common source of title of the parties described the southwesterly boundary by courses and distances along a creek, and the lot as containing a certain number of acres “less the wear of the creek." The creek formed a bend, leaving a long narrow strip of plaintiff's land extending out into said bend. During a freshet the creek broke through this narrow strip, and thereafter continued in its new ■course. In an action of ejectment, Held, that the use .of the phrase ■“ wear of the creek ” had reference to the gradual alteration of the course ■of the stream, and not to a violent and sudden change of its course, and that plaintiff was entitled to recover.
    Appeal from a judgment of the special term entered in the office of the clerk of the county of Brie January 15, 1891, in favor of the plaintiffs and against the defendants.

      Spencer Clinton, for app’lts; M L. Parker, for resp’ts.
   Lewis, J.

This is an action of ejectment brought to recover possession of parcels of land situated in the county of Brie. .

The plaintiffs and the defendant, John Hughes, were owners of -adjoining lots of land located partly in the city of Buffalo and an adjoining town. The defendant, Bennett, was a tenant of Hughes and did not answer.

The titles came from the same source, the Ogden Land Company. The plaintiffs’ land was known and distinguished on a map and survey of the village tract so-called, made by Mr. James Sperry, as lot 37. The plaintiff’s lot in the various conveyances was described as containing 24 and 70-100 acres “less the wear ■of the creek.” The southwesterly boundary of the plaintiffs’ lot as laid out upon Sperry’s map was known as Cazenovia creek as ■originally surveyed, and this line is described as beginning at the northwest corner of the lot and thence up the creek a number of courses and distances mentioned, and which appeared upon the map as running along the margin of the stream. The defendant was the owner of lots 270 and 271 upon said map designated as lying upon the opposite side of the creek from the plaintiffs’ land.

The land of the parties is low. Cazenovia creek, in an ordinary state of water, is sluggish, but is subject to severe floods in times of freshet. The general course of the creek in passing through the lands of the parties ran in a northwesterly direction, but at a point in its course through the lands of the parties it made a sudden detour for a distance of some four hundred feet southerly from its general course, and then returned northerly about the same distance to a point opposite the place of its departure, and from thence flowed along in the general line of .the-stream, leaving a part of the plaintiffs’ lot, a long, narrow strip of land, extending up into this bend of the stream.

In the year 1859, at a time of a great freshet, the waters of the stream broke over and across the neck of this narrow strip mentioned and formed a channel through the neck, and thereafter, instead óf making the detour mentioned, the waters flowed along the general course of the stream across the neck of this strip of land and thereby separated this piece of land from the main body of the plaintiffs’ lot, and hence arose one of the questions presented by this appeal, each of the parties claiming this strip of land. It being the contention of the defendant that it was lost to the plaintiffs by the “wear of the creek; ” the plaintiffs contending that the true meaning of, the phrase “ wear of the creek ” had reference to the gradual and imperceptible changes in the banks of the creek, by which the soil is taken from one side of the-stream and deposited upon the other, and not to a sudden and violent change in the course of the stream by floods.

The plaintiffs’ theory of the case was adopted by the trial court, and we think correctly. We think the use of the phrase “ wear of the creek ” had reference to the gradual alteration of the course of the stream, and not to a violent and sudden change of its course, as was effected in this case. The western boundary of the plaintiffs’ lot being upon the creek and following courses and distances, carried the western line to the center of the creek.

The findings of the trial court were sustained by the evidence. The exceptions of the defendant have been examined, and we find nothing in them justifying a reversal of the judgment The judgment should be affirmed.

Dwight, P. J., and Macomber, J., concur.


author: Dwight, P. J.

text:
    In the Matter of the Application of William Weaver, Superintendent of the Poor, App’lt, v. Hiram Benjamin, Impl’d, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Poob—Support by relatives.
    The court of sessions has no power in a proceeding under title 8 of part 6 of the Code of Criminal Procedure, to prescribe- the place where the poor person shall be supported, nor any of the conditions of such support, except that the manner of it shall be such as shall be approved by the superintendent of the poor. The provisions of the Revised Statutes requiring the removal to the county house of all persons requiring permanent relief or support do not apply to such a case.
    Appeal from an order of the court of sessions of Allegany county denying the application of the superintendent of the poor ■of that county to modify an order of that court, previously made, .for the support of Jemima Benjamin.

      D. Dickson, for app’lt; C. D. Farnham, for resp’t.
   Dwight, P. J.

The proceeding was instituted under the provisions of title 8 of part 6 of the Code of Criminal Procedure (§ 914, et seq.), to compel the children, two sons and a daughter, •ot Jemima Benjamin, to support their mother. Only the son Hiram Benjamin appeared to answer the application, and upon his '■consent in open court an order was made that he pay to the superintendent the poor the sum of two dollars per week for the support of his mother so long as she should remain in the county poor house, or until the further order of the court. The order recited, among other things, that the distinction between town and county poor had been abolished in Allegany county, and that the expense of maintaining all the poor of the county was a ■county charge, and that the county had provided and then had a poor-house ór alms-house for the reception of its poor.

A few months later, Mrs. Benjamin, in the meantime, not 'having been removed to the poor house, the superintendent made a further application to the court, stating that he “ had found such ■order impracticable and unfit to meet the needs, comfort and contentment of said Jemima Benjamin,” and asking that the order might be set aside or modified “ so far as it limits the place of ¡support to be at the alms or county house." The court entertained the application and, after hearing counsel, held and decided “ that the court has no power to direct the payment of money for the support of said Jemima Benjamin at any other place than the county alms house,” and upon this- ground alone denied the application to set aside or modify the order already made.

In this determination it seems to us very clear that the learned -court of sessions fell into the error of limiting its own powers in .a proceeding of this character by the law which prescribes the powers and duties of the superintendent, or overseer of the poor, in respect to the support of paupers or persons who have become .a charge upon the county, or the town, in which they may be. It is to cases of the latter character that the provisions of the Revised Statutes relate which require the removal to the county poor house of all persons requiring permanent relief or support, ■and who can be safely so removed. 1 R. S., 624, § 39 (Birdseye, 2261, § 28); People v. Com’rs of Emigration, 27 Barb., 562 ; Gallup v. Bell, 20 Hun, 172. But it is manifest on the face of the .statute under which this proceeding is taken that those provisions have no application here. This statute (title 8, part 6, of the ■Code of Grim. Pro.) provides a particular scheme for the support .and maintenance of a particular class of persons unable to maintain themselves, viz., of persons who have relatives within prescribed degrees who are of 'sufficient ability to relieve and maintain them. The first section of the title (§ 914) provides as. follows : “ The father, mother and children, of sufficient ability, of a poor person who is insane, blind, old, lame, impotent or decrepit, :so as to be unable to work to maintain himself, must at their own ■charge relieve and maintain him in a manner to be approved by the overseer of the town where he is.”

The next section (915) provides that “If a relative of the poor ■person fail to relieve and maintain him, as provided in the last -section, the overseer of the poor of the town where he is- * * "

may apply to the court of sessions of the county where the relative dwells [upon a notice prescribed] for an order to compel such relief;” and § 926 gives to the superintendents of the poor of those counties in which all the poor are a county charge the powers given to the overseers of the towns by the previous sections ■quoted. Other sections of the title prescribe the duty of the -court of sessions upon such application being made to it. Thus, § 916 provides that the court, after hearing the allegations and proofs of the parties, must order such of the relatives of the poor person mentioned in § 914, as were served with the notice .and are of sufficient ability, to relieve and maintain him, specifying in the order the sum to be paid weekly for his supportand § 918 provides that the order may specify the time during which the relatives must maintain the poor person, or during which any ■of the sums dii-ected by the court must be paid, or it may be indefinite or until the further order of the court. The court may, from time to time, vary the order as circumstances may require, on the application either of any relative affected by it, or of an ■officer on whose application the order was made”

This, then, is the particular scheme of the statute for the relief .and maintenance of a particular class of poor persons, viz. : who have relatives within prescribed degrees of sufficient ability to relieve and maintain them. It begins by laying upon those relatives the absolute duty, at their own charge, to support the persons described. Hot in the poor house, nor even through the agency of the poor authorities of town or county, but only in a manner to be approved by them ; and the further provisions of the statute relate to the means by which this duty shall be enforced. It is manifest that this particular scheme is outside of the general provisions of the statute for the care and relief of the poor who are, or who become a public charge. Its evident purpose is to prevent these persons from becoming a public charge, and, .as it seems to us, nothing is further from its intent than that they .should be made and marked as public paupers by being con.signed -to the poor house of the county.

But however this may be, and whatever might become the ■duty or discretion in this respect of the superintendent of the poor in case the relative required by the order'to relieve and maintain the poor person refused to do so, but in default thereof paid the weekly sum specified in the order, it is plain that the court of sessions had no power to prescribe the place where the poor person should be supported, nor any of the conditions of such support, except that the manner of it should be such as was approved by the superintendent of the poor. This is apparent from the ■reading of the statute quoted (supra)] and so the court said in Duel v. Lamb, 1 T. & C., 66-69, and added “ whatever power there is over that support is vested in the overseers or superintendents of the poor;. the sessions can only declare the duty to-support, and in default to fix the sum to be paid.”

It is very clear fhat the order which was sought to be set aside or modified went beyond the power of the court of sessions when it attached to the liability of the respondent to support his mother the condition that she should receive such support in the county poor-house. That order having been made on consent probably cannot be modified without consent, but it can be set aside, and the proper order made in accordance with the proofs to be taken.

The order appealed from should be reversed, and the-proceeding remitted to the court of sessions of Allegany county* with; directions to proceed therein.

So ordered, with costs to be paid by the respondent.

Macomber and Lewis, JJ., concur.


text:
    The People, Pl’ffs, v. Maurice F. Danahy, Def't.

      (Supreme Court, General Term, Fifth, Department,

      Filed April 13, 1892.)

    1. Indictment—Obscene prints.
    In an indictment for selling or having possession with intent to sell obscene prints, it is not enough to characterize the publication complained, of, but the contents of the publication must be set forth in order that it may appear on the face of the indictment that it is of the character charged.
    2. Same—Newspapers.
    It is no objection to a count otherwise correct that the printed matter in question is shown to have been printed in a newspaper; it is still “printed, matter,” and if of an indecent character is within the prohibition of the-statute.
    3. Same.

      A. count may set forth matter by reference to a former count which contains the same in order to obviate useless repetition.
    Cross appeals from a judgment of the court of sessions of Monroe county allowing defendant’s demurrer to several counts of an indictment, and overruling the same as to other counts.

      Geo. A. Benton, for pl’ffs; J. Van Voorhis, for def’t.
   Dwight, P. J.

The indictment was under § 317 of the Penal Code, relating to obscene publications. It was in six counts and the defendant demurred to the indictment as a whole, and separately to each count, on the ground that the facts stated in the indictment, and in each count thereof, do not constitute any crime. By the first count the grand jury of the county of Monroe-.accuse the defendant “ of the crime of selling an obscene newspaper, committed as follows ; The said Maurice F. Danahy at the city of Rochester, in the county of Monroe, on the 27th day of September, in the year 1890, willfully, unlawfully and maliciously did sell to Abram Rosenberg and to divers other persons, whose-names are to this grand jury unknown, an obscene, lewd, lascivious,, filthy and indecent newspaper, commonly called and known 1 Sunday Star,’ which said newspaper and Sunday Star was No. 1 of volume 2 of said paper, bearing date Rochester, N.Y., September 28, 1890, then and there containing stories and articles of an indecent and immoral character, having a tendency to degrade and corrupt the morals of such persons into whose hands it might ■come, contrary to the form of the statute, etc.” The objection to this count, that it does not set out the contents of the newspaper ■complained of, or any portion of them, is we think well taken. It is a cardinal principle of pleading, in both civil and criminal actions, that the complaint (indictment) shall contain a statement, not merely of the charge sought to be established, but of facts which, if taken to be true, support the charge. The pleading must show on its face, its truth being conceded, that the cause -of action exists or the crime has been committed. It is not enough to allege a conclusion of fact; the facts themselves must be alleged from which the conclusion may be drawn ; and in a case like the present it is not enough to characterise the publication complained of, but the contents of the publication must be set forth in order that it may appear on the face of the pleading that , it is of the character charged.

The rule which has always held in actions, of libel, either civil ■or criminal, is applicable to this case. A complaint or indictment which only charged that the written or printed matter complained of was libelous or defamatory would certainly be bad, aiot because of a failure to identify the matter, but because it did not appear on the face of the pleading that it was libelous or defamatory. And so the two classes of actions or prosecutions have •always been classed together for the purposes of this rule, and it has been held with great strictness that in all actions, civil and ■criminal, in which the cause of action or offense consists in the publication of written or printed matter, the words complained of •must be set out in the complaint or indictment The cases of Bradlaugh and Besant v. The Queen, L. R., 3 Q. B. Div., 607; Commonwealth v. Tarbox, 1 Cush., 66; United States v. Bennett, 16 Blatch., 338; Commonwealth v. Dejardin, 126 Mass., 46, are a few of those industriously collected by the learned county judge ■and of which synopses are given in his opinion. They are directly in point, and in effect base the rule on the reasons above ■considered, and not, as the court seems'to have done in the case of The People v. Hallenbeck, 52 How. Pr., 502, on the ground of the necessity of clearly identifying the publication complained ■of. Identification is, of course, a requirement of the pleading, but in that respect the count in question is not at fault. It describes the newspaper by its name, its volume, number, date and place of publication. Moreover, in its allegation of the manner in which the crime was committed,, it applies to the publication not only the term obscene ” but all the other descriptive terms used by the statute, in the alternative, in defining the crime, viz: “lewd, lascivious, filthy, and indecent; ” and, still further, it describes the newspaper as containing articles and stories of an indecent and immoral character. But, after all, these additions are only an amplification of the charge and not demonstration of its truth; a conclusion of fact and not the facts themselves relied upon to establish the charge made against the defendant

Three other counts, the 2d, 3d and 6th, respectively, charge the defendant with having in possession with intent to sell, offering for sale and publishing the same newspaper described as In the first count, and like that count setting out no portion of its contents. We think the four counts so far mentioned are defective-in the respect considered, and that the several demurrers thereto must be allowed.'

On the other hand, the fourth count completely avoids the objection which we have considered and is liable to no other objection so far as we observe. It is framed under the same subdivision of § 317 as the first count, but under another specification. The statute as applicable to it reads: “A person who sells * * *- any * * * printed matter of an indecent character * * * is guilty of misdemeanor.” This count besides specifying the time when, place where, and person to whom the sale is charged to have been made, and a minute description, for the purpose of identification* of the newspaper in which it was printed, sets out in full the “ printed matter of an indecent character ” to which the charge relates. -It is no objection to this count that the printed matter in question is shown to have been printed in a newspaper. It is still “printed matter,” and if of an indecent-character is within the prohibition of the statute as much as if printed in a broadside or handbill. As pointed out by the learned county judge, the language of the specification in the statute is not “ or any other printed matter,” etc. On the contrary it is very plain that the language “ or any printed matter of an indecent character ” is intended to be very general and to include everything coming within the description whether otherwise described in previous specifications or not

The fifth count charges the defendant with having the same printed matter in possession with intent to sell, and it identifies and sets out the .matter intended by a reference to the fourth count,, which is thereby made a part of the fifth. This mode of plead-, ing by reference to a former part of the same indictment, to obviate a useless repetition, is sustained by authority and seems to be-without substantial fault The People v. Graves, 5 Park. Crim., 134.

The.demurrer as to the fourth and fifth counts was properly overruled, and the judgment should be in all respects affirmed.

Judgment of the court of sessions of Monroe county affirmed, and case remitted to that court to proceed on the.fourth and fifth, cou'nts of the indictment.

Macomber and Lewis, JJ., concur.


author: Macohber, J.

text:
    The People, Resp’ts, v. Nathan Colegrove, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 13, 1892.)

    Bastardy—Hew trial—Limitation.
    Bastardy proceedings are of a criminal nature, and motions for a new trial therein on the ground of newly discovered evidence are governed hy § 466 of the Code of Criminal Procedure, and must he made within one year.

      Appeal by the defendant from an order of the court of sessions of Livingston county, entered April 9, 1891, denying his motion for a new trial made upon the ground of newly discovered evidence after his conviction in filiation proceedings before justices, of the peace, and after an affirmance of such conviction by the court of sessions and by the general term of the supreme court

      H. H. Relya, for app'lt; L. 0. Reed, for resp’ts.
   Macohber, J.

The order of filiation was made against the defendant by justices of the peace of Livingston county on the 4th day of December, 1888. That conviction was, on appeal, affirmed by the court of sessions, where a new trial was had, and such determination of the court of sessions was affirmed by the general term of this court in January, 1891.

Soon after the decision of this court a motion for a new trial was made in the court of sessions upon the ground of newly discovered evidence. The court did not look into the papers offered . on such motion, but upheld the objection made by the district attorney that the application had been made too late, and that that court had no power to grant the relief asked for. From the order entered on that decision this appeal is taken.

By § 465 of the Code of Grim. Pro., when it is made to appear by affidavit that upon another trial the defendant can produce evidence such as, if before received, would probably have changed the verdict, a new trial may be granted, provided such evidence has been discovered since the trial, is not cumulative, and a failure to produce it on the trial was not owing to want of diligence. By § 466 of that Code such application must be made within one year.

This provision of the statute seems to be conclusive against the appellant in this instance, unless, as is contended for by his counsel, the case is not of a criminal nature and falls within the provisions of the Code of Civ. Pro., where there seems to be no such limitation as to the time in which an application of this nature must be made.

In the case of the People ex rel. Fuller v. Carney, 29 Hun, 47, it was held that proceedings of this character were criminal and not civil, and that the provisions of the Code of Civ. Pro., as they then stood, relative to appeals, had no application to appeals in bastardy proceedings, but that such proceedings can only be reviewed by a common law writ of certiorari.

The power vested in the court of sessions is derived solely from the statute, and no common law power in that court can be resorted to in order to enable it to grant a new trial under these circumstances.

For this reason we think the order appealed from should be affirmed.

There are other reasons why this conclusion would be reached, but it is not deemed necessary or advisable to state them, for we think that the court of sessions placed its decision upon the proper ground.

It follows that the order appealed from should be affirmed.

Order appealed from affirmed, and the case remitted.

Dwight, P. J., and Lewis, J., concur.


author: Per Curiam.

text:
    Sarah A. Barnum et al., App’lts, v. John Fitzpatrick, Resp’t.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    Appeal—Reargument.
    Where no question of fact or citation decisive of the cáse was overlooked, and the questions of law raised are not novel, a motion for reargument or for leave to go to the court of appeals will he denied.
    Motion for a reargument or for leave to go to the court or appeals. See 42 St. Rep., 179.

      Hatch & Warren, for app’lts; Frank Moss, for resp’t.
   Per Curiam.

We have carefully reviewed this case and do not find any question of fact or citation “ decisive of the case ” was overlooked in arriving at the conclusion reached. We are not satisfied from the evidence given that the landlords used the orders of the city departments merely as a pretext to drive the tenant out, or that they unnecessarily delayed the work for that purpose. All the authorities cited on the motion for a reargument were examined before announcing the decision. Nor are the questions of law raised novel; they have been repeatedly decided by the court of last resort. The case we think comes fairly within Curley v. Tomlinson, 5 Daly, 283. Both the motion for reargument and for leave to go to the court of appeals must therefore be denied, with ten dollars costs.

If the landlords commence new proceedings, the questions of fact may be clearly presented and the length of time which has. now elapsed will of itself be strong evidence of good or bad faith on their part.

Bookstaver, Bischoff and Pryor, JJ., concur.


text:
    Oscar Compton, Resp’t, v. John D. Heissenbuttel et al., App’lts.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    Appeal—Rbargument.
    Reargument of an appeal will not Be allowed for the sole purpose of reviewing the conclusion of a former general term on a question of construction which depends largely on the evidence.
    Motion for reargument.

      Hyland & Zabriskie, for motion; Putney, Bishop & Slade, opposed.
   Per Curiam.

It is not contended' that any authority or question decisive of this case was overlooked by this court in rendering its decision on the appeal herein. On the contrary, the opinion shows that the question raised on the motion was the very question discussed. We are asked to review the conclusion of a former general term on a question of construction which depends largely on the evidence. If such practice were encouraged there would, be no end to litigation. The motion must be denied, with ten dollars costs.

Bookstaver, Bischoff and Pryor, JJ., concur.


author: Bookstaver, J.

text:
    Jabez Burns, Resp’t, v. William J. Swan, App’lt.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    Services—Appraisal op pire damages.
    In an action for services in appraising damages by fire the only question was as to defendant’s liability to pay and whether the action was prematurely brought. There was evidence to show such liability by reason of an agreement between the owners of the property and defendant, and that defendant had received from them more than enough money to pay for the services and had admitted that he was to pay all disbursements. Held, that a judgment in favor of plaintiff would not be disturbed. •
    Appeal from a judgment rendered in the district court of the city of New York for the first judicial district

      Janeway, Thatcherr & .Richards, for app’lt; Johnston & Johnston, for resp’t.
   Bookstaver, J.

This action was brought to recover for services in appraising damages by fire to the machinery of Loudon & Johnson. The evidence as to the rendition of the services sued for was practically admitted upon the trial, and the value of such services was not disputed; the only question being whether the defendant was bound to pay for the services rendered by the plaintiff, and if so whether the action was prematurely brought. After an examination of the evidence, we think the liability of the defendant to pay the plaintiff was clearly established and that the judgment of the court below was right in that particular. We also think that, under the agreement between the defendant and Loudon & Johnson, the action was not prematurely brought. The former had received from the latter $560.79, much more than sufficient to pay for these services; and the defendant admitted that he was to pay all disbursements made by them. Whether anything was due from Loudon & Johnson to the defendant at the time this action was brought was a matter in dispute between them. It was not for the court below, nor is it for this court, to determine whether anything was due or not. This judgment will not in any way prejudice the defendant in his contention with Loudon & Johnson.

The judgment should therefore be affirmed, with costs.

Bischoff, J., concurs.


text:
    Jennie Cornelius, Resp’t, v. Jacob Rieser, App’lt.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    Appeal—Leave to go to court op appeals.
    Leave to appeal to the court of appeals is never granted unless a principle of sufficient importance is involved in the case, or where the decision of this court is in conflict with that of the supreme or superior court, or where the construction of a public statute is involved, or the case is of public importance, or involves large public interests, or is of importance to others besides the litigant, or where a number of cases depend upon the decision.
    Motion for reargument, or for leave to appeal to court of appeals. See 44 St. Bep., 491.

      Johnston & Johnston, for motion; F. F. Stern, opposed.
   Per Curiam.

Nothing in the case, or the points of the appellant, was overlooked when this appeal was decided, and the decision is not in conflict with any case or statute. The moving .papers fail, therefore, to show a ground for reargument under .the rules. Curley v. Tomlinson, 5 Daly, 283. There is no question for submission to the court of appeals. The law governing the case is well settled. The only contention between the parties is, whether there was evidence of authority from defendant to his bar-keeper to incur the expense of washing towels for the saloon; and whether the latter’s wife, who did the work, can recover for it against defendant. The apprehension of defendant that other actions for similar services may be brought against him by the wives of other bar-keepers employed by him, is no ground for submitting this case to the court of appeals; for this case is determined upon its own facts and cannot, affect litigations the evidence in which may be wholly different.

Leave to appeal to the court of appeals is never granted unless a principle of sufficient importance is involved in the case. Woodward v. Bugsbee, 2 Hun, 683. It has been granted where the decision of our general term is in conflict with that of the supreme or superior court, Clapp v. Graves, 2 Hilt., 243; where the construction of a public statute is involved, or the case is of public importance, or involves large public interest, or is of importance to others besides the litigant, or where a number of cases depend upon the decision; but in such cases there must be ground for doubting the correctness of the decision. Butterfield v. Radde, 38 Supr. Ct., 44. The application here is not brought within the rule as here laid down, and there is no unsettled question of law involved.

Motion denied, with ten dollars costs.

Daly, Oh. J., Bischoff and Pryor, JJ., concur.


text:
    H. F. Booth et al., Resp’ts, v. Albert B. Simpson et al., App’lts.

      (New York Common Pleas, General Term,

      Filed March 7, 1892.)

    Appeal—Judgment.
    Where the question litigated was one of fact and the judgment was rendered on a conflict of evidence the appellate court will not reverse unless the evidence so greatly preponderated in favor of the appellant that its disregard amounted to a perversion of justice.
    Appellants’ motion for reargument of appeal.

      W. F. Gleason, for motion; T. G. O Reilly, opposed.
   Per Curiam.

The question litigated in the court below was one of fact and the judgment appealed, from was rendered upon a conflict of evidence. In such a case this court will not reverse unless the evidence so greatly preponderated in favor of the appellant that its disregard amounted to a perversion of justice. Upon an examination of the record we cannot say that injustice has been done the appellants and this motion must therefore be denied.

Motion denied, with ten dollars costs.

Daly, Ch. J., Bischoff and Pryor, JJ., concur.


author: Earl, Ch. J.

text:
    Henry E. Weed, Resp’t, v. The Hamburg-Bremen Fire Insurance Company, App’lt.

      (Court of Appeals,

      Filed May 24, 1892.)

    1. Insurance (Fibs)—Interest oe assured—“ Estate.”
    Plaintiff procured from defendant a policy insuring the “ estate of O Richards ” against loss by fire, loss payable to himself, “ mortgagee, as his interest may appear.” The policy provided that it should be void if the exact interest of the assured in the property, whether as owner, mortgagee, or otherwise, was not truly stated. It was shown that after giving the mortgage to plaintiff, Richards, with the knowledge of plaintiff, had conveyed the property in trust for his creditors, with a residuary clause in his own favor, but remaining in possession of the real estate, claiming to own it, and died insolvent prior to plaintiff’s obtaining his insurance. Held. that the word “ estate ” was not used in its restricted sense, but included all the interests in the property left by Richards, and among them those covered by the trust deed.

      2. Same.
    If the trust deed was invalid, then the title remained in Richards at the time of his death, and passed as his unqualified estate to his widow and heirs. •
    3. Same.
    The fáct that plaintiff commenced an action for the foreclosure of his mortgage, upon which judgment was entered but no sale made, some years before taking out the insurance, would not prevent plaintiff from recovering upon his mortgage, for lie remained mortgagee in every real sense, notwithstanding the judgment. The omission to mention the judgment in the policy was not a misrepresentation or omission to mention a material fact.

      4. Same—Notice oe loss—“Forthwith.”
    The word “ forthwith,” as relating to giving notice of a loss, must have a reasonable construction, and where proofs of loss were served nineteen days after a fire, the company, if it intends to claim that the notice was not served in time, must take its position promptly and not put the assured to the expense of complying with the other conditions of the policy.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment entered upon a verdict directed for the plaintiff upon the trial at circuit.
    On the 30th day of October. 1873, Orson Richards executed to the plaintiff a mortgage upon his grist mill at Sandy Hill in this state,'to secure the payment within three years of all advances to be made by the plaintiff to him, and all bills, drafts and notes on which he should be maker, endorser, drawer or acceptor which the plaintiff should thereafter discount for him, with interest thereon. On the 1st day of May, 1875, Richards executed and delivered a deed to Dean Sage conveying to him the grist mill and other real estate, in trust, to have, hold, enjoy and dispose of the same and receive the rents, issues, profits and proceeds thereof so. long as the real estate or any portion thereof should remain unsold and undisposed of under the provisions and .in pursuance of the trusts in the deed contained, and until such period to make application, of the rents, issues and profits of the real estate as in the. deed later provided, and further in trust to make sale of the whole or any portion of the real estate at such time or times as to him, the trustee, might seem best, for cash or upon credit, or partly for cash and partly upon credit, or to otherwise dispose of the same; and after payment of all specific liens and incumbrances on the real estate to make application of the remaining proceeds and all the money and property received by him-, first to the payment of the expenses and commissions of the trustee, and then to the payment of all the debts of Richards, pro rata, and the residue of the property was to be re-conveyed by the trustee to Richards. It does not appear what, if anything, the trustee ever did under the trust deed. Richards remained in possession of the real estate claiming to own the same until his death, September 4, 1879., He died intestate, insolvent, not having real and personal property sufficient to pay his debts, and leaving a widow and three children, all residing at Sandy Hill. The widow and a son, Eber Richards, were appointed administrators of the estate of the intestate, and the widow died in May, 1881.
    On the 24th day of November, 1881, the plaintiff procured a policy of insurance from the defendant upon the grist mill and the machinery therein, by which policy it insured the “ estate of 0. Richards against loss or damage by fire to the amount of $1,000; $750 on their frame water power grist mill building; $250 on fixed and movable machinery, shafting, pulleys, hangers and other machinery therein, loss, if any, payable to Henry E. Weed, mortgagee, as his interest may appear.” No mention" was made in the policy of the trust deed. The plaintiff procured the policy without consultation with the heirs or administrator of Richards, and paid the premium for the same with his own money. The mortgage to him did not contain any provision about the insurance of the property, and did not authorize the mortgagee to insure the property at the expense of the mortgagor. The property insured was destroyed by fire on the 4th day of February, 1882, and at that time, and also at the time of the insurance, there was due upon the mortgage about $12,000.
    The plaintiff brought this action to recover upon the policy, and upon the trial at the close of the evidence the court directed a verdict in his favor.

      A. II. Sawyer, for app’lt; G. B. Wellington, for resp’t.

       Affirming 39 St. Rep., 638.

   Earl, Ch. J.

The policy contained this provision : “ If the exact interest of the insured in the property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee or otherwise, be not truly stated in the policy, then and in every such case this policy shall be void;” and the principal contention of the defendant is that the policy was void because the facts in reference to the trust deed were not truly stated therein.

The solution of the question raised by this contention depends upon the scope and meaning to be given to the words “Estate of O. Richards ” contained in the policy.

The policy was valid, although no particular person was named therein as the assured. Clinton v. The Hope Insurance Co., 45 N. Y., 454; Weed v. L. & L. Fire Ins. Co., 116 id., 106; 26 St. Rep., 414.

What is the precise significance of the word “ estate,” when used as it is here, has not been determined in any case, and the law has not assigned to it any definite meaning. It is an indeterminate word, the precise meaning of which is to be¡ascertained from the circumstances under which it is used. It may be used to represent the interest of administrators in personal estate, or the interest of widow and heirs in real estate, or the interest of all these in both personal and real estate, and the scope to be given to it will depend largely upon the persons who procured the policy, and the purpose for which it was procured Here the plaintiff knew of the trust deed. He needed an insurance covering all the interests in the property. He could have had no-purpose to insure any particular or limited interest It was difficult, if not impossible, to specify what particular interest the administrator or the heirs or the trustee had, and hence the comprehensive word “ estate ” was used to cover all the interests. The plaintiff procured this insurance through an insurance broker, and it does not appear that he had any negotiation in reference thereto with the defendant or its agent. He must, therefore, he presumed to have, chosen the phrase inserted in the policy; and the defendant assented to it, and must be held to have assented to its use in the most comprehensive sense that will give validity to the policy. In the absence of proof it cannot be assumed that the defendant used the phrase in any restricted sense, and certainly not in a sense which would' render the policy void ah initia. The estate of one who dies intestate may mean all the property which he leaves for his widow, heirs, next of kin and creditors, the whole body of his property as he leaves it at his death. His creditors have the primary lien and claim thereon, first upon the personal property, and if that be not sufficient, then upon his real estate, and by appropriate proceedings the creditors can enforce their claims against both the personal and real estate. The real estate conveyed by Richards to Sage remained a part of his estate. Sage had no personal interest in it

It was not conveyed to him for his benefit During the life-of Richards he was bound to administer it for his benefit in the payment of his debts as directed in the trust deed, and to return the balance, to him, and after his death, if there was any balance, he was bound to return it to his heirs as a part of his estate. If this real estate was not a portion of the estate of Richards, to whose estate did it belong ? It did not belong to the estate of Sage It was to go under the trust deed precisely where it would have gone if the trust deed had not been executed, to wit: to the creditors. It was a part of Richards’ estate, to be administered for the benefit of his creditors, just as it could have been by his administrator if the trust deed had not been executed. Therefore the words- “Estate of 0. Richards” were comprehensive enough to include all the interests in the property- left by Richards, and among them those covered by the trust deed. All the property belonged to the “estate.”

There was thus no defect in or qualification tó the title of the estate, and the exact interest in the property insured was truly stated in the policy when it was represented as belonging to the estate. At least we think this was a possible view of the evidence which the trial judge could take, and that therefore it is sufficient, so far as concerns this point, to uphold the" judgment In Clinton v. The Hope Insurance Company, supra, the policy was procured by an administratrix upon real and personal property on her behalf, and for the benefit of the widow and heirs of the intestate, and the premium was paid out of the estate; and it insured “ The estate of Daniel Russ.” Evidence was given showing that the intention of the parties was to effect an insurance upon both real and personal property for the benefit of the widow and children of the intestate, and it was held that the policy covered the interests of the administratrix, widow and children in the property insured and destroyed by fire: that they were sufficiently described under the words “ Estate of Daniel Russ; ” that where the designation of the assured may be applicable to several persons, or if the description of the assured is insufficient' or amhiguous, so that it cannot be’understood without explanation, extrinsic evidence may be resorted to to ascertain the meaning of the contract, and that when thus ascertained it will be held to apply to the interests intended to be covered by it, and they will be deemed to be comprehended within it who were in the minds of the contracting parties. Nothing decided in the case of Weed v. The L. & L. Fire Ins. Co., supra, is adverse to the views we have expressed.

The action in that case was by this plaintiff to recover upon another policy taken by him upon the same property, and one of the conditions in that policy was that “ if the interest of the insured in the property be any other than the entire, unconditional and sole ownership of the property for the use and benefit of the insured, * * * it must be so represented to the company and so expressed in the written part of this policy, otherwise the policy shall be void.” There the trust deed to Sage was not communicated to the insurance company, and was in no way referred to or mentioned in the policy, and the policy was on that account held void. There the evidence upon-the trial was different from that given upon the trial of this action, and the ’case came before the general term upon appeal from a judgment in favor of the plaintiff, entered upon the report of a referee, who, among other facts, found that at the time of the issuing of the policy the interest of the “ estate of 0. Richards ” in the property insured was not “ the entire, unconditional and sole ownership thereof for the use and benefit of the assured.” That finding was regarded as binding upon the plaintiff, and in the end it defeated his action. Here there was no finding adverse to the plaintiff, and he is entitled to every inference which can be drawn from the evidence in his favor. It was well said in that case that such a construction should be adopted as will uphold the whole contract and give effect to all its provisions in preference to one that will render .some of the 'provisions nugatory; and that the court should, therefore, endeavor to give to the phrase “ estate of 0. Richards ” such meaning as will harmonize it with the condition of the policy if it ■can do so without doing violence to the words used. And the learned judge writing the opinion said: “ Applying these rules of ■construction to the evidence in this case, it leaves no reasonable doubt as to the persons intended by the expression1 estate of O. Richards.' Mo doubt the phrase might include the administrator. So it might, without doing violence to language, include the trustees under the Sage deed. But the question here is, who did the defendant intend to designate ? It could not have been the trustee, as the agent had no knowledge of the Sage deed ■ Mor do I think it was intended to include the administrator.”

And he came to the conclusion upon the evidence in that case that the intention of. the parties to that policy was to insure the heirs of Richards who succeeded upon his death to his title, and that in consequence of the trust deed they had no title. It is sufficient to say that in this action the evidence is different, and that it is a possible and allowable inference that the intention was to insure all the interests which comprehended and represented the estate of Richards.

We have thus far proceeded upon the assumption that the trust ■deed was valid and sufficient to pass the title of the property to the trustee. But we do not determine whether it was valid or not, as it is wholly immaterial. If it was not valid, then the title remained in Richards at the time of his death and passed as his unqualified estate to his widow and heirs. But other objections are made to this recovery which must be noticed.

The plaintiff commenced an action for the foreclosure of his mortgage in 1877, and judgment of foreclosure was entered in that action. Mo sale took place under the judgment, and at the time of the insurance the plaintiff held both the mortgage and the judgment. The judgment was not mentioned in the policy, and the plaintiff was simply named as mortgagee, and hence it is claimed that there was a misrepresentation and omission to mention a material fact. , We think the plaintiff remained mortgagee in every real sense, notwithstanding the judgment. That was ■simply one of the steps in a proceeding to foreclose and realize upon the mortgage. It gave the plaintiff no new right except the right to sell the mortgaged property for the satisfaction of the mortgage. It did not satisfy or destroy the mortgage, and it gave the plaintiff no new or increased interest in the property. There was, therefore, no material misrepresentation as to the ¡mortgage.

In the mortgage, the complaint and the proofs of loss, the plaintiff appears as the mortgagee in his own right. He alleges-in his complaint that he advanced upon the security of the mortgage upwards of $15,000. The defendant in its answer denied that the plaintiff advanced any money upon the mortgage, or that he ever owned it, and alleged that it was made and executed to secure the Manufacturers’ National Bank of Troy for such loans and advances as might be made by it to or for the benefit of or at the request of Richards, and that the plaintiff had no interest in the mortgage; that if the mortgage was executed to and in the name of the plaintiff as mortgagee, it was so made and held by the plaintiff in trust, secret or otherwise, for the benefit of the bank, and not. otherwise, and that this action is not prosecuted in the name of the real party in interest. Upon the trial the plaintiff -proved the-mortgage and testified that he advanced to Richards upon the-mortgage upwards of $15,000. Upon his cross-examination-he testified that he was formerly president of the bank for many years. The defendant’s counsel asked him this question: “ Can you tell me when you were president?” This was objected to-on the part of the plaintiff as immaterial and as not the subject, of cross-examination; and the trial judge sustained the objection. Defendant’s counsel then offered to prove that the mortgage “was not at the time of the commencement of the action,, and never had been in -fact, owned by the plaintiff; that the mortgage was made and executed to secure the Manufacturer’s National Bank of Troy for such loans and advances as might be made by the bank at the request of or to or for the benefit of said Richards p and that said Henry B. Weed, the plaintiff in this action, had no-interest in said mortgage, and that the same was made to and held by the plaintiff in trust for the benefit of the bank, and not-otherwise.” The plaintiff’s counsel objected to this evidence as immaterial, and the judge sustained the objection, and it is-claimed that in excluding this evidence he committed error. There was no offer to prove that the plaintiff did not, as he testified, in fact advance the money upon the mortgage. We have-thus these facts: the plaintiff took the mortgage in his own name. He advanced the money upon the mortgage and took the-policy making it payable, to himself as mortgagee, and he paid the premium of insurance. There was no offer to show that the-bank had advanced any money upon the mortgage.

Under such circumstances, it is difficult to perceive what the-defendant meant to prove or could prove, to show that the plaintiff was not the real party in interest in the mortgage and the policy. But if we assume that the offer was to show that the plaintiff advanced the money upon the mortgage in some way as the representative and trustee of the bank, doing the business in his own name, and possibly (there being no proof upon the subject) not disclosing his representative capacity to Richards, then, as between him and Richards, the liability of Richards was to* him, and the contracts with Richards were his contracts. The-source from which the money came did not concern Richards. He received the money under a contract with the plaintiff, and agreed to pay the plaintiff, and gave him the mortgage to secu repayment to him. The transactions were between these two persons, and the right of action to enforce payment and the mortgage were in the plaintiff.' He could at least sue as the trustee of an ■express trust under § 449 of the Code, and this he could do without alleging the-trust, as his representative capacity did not anywhere appear in the transactions. It is a general rule of law that in the case of written contracts the right of action follows the legal title, and the party entitled to maintain an action upon a written contract is the one to whom by its terms it is to be performed. Considerant v. Brisbane, 22 N. Y., 389: Noe v. Christie, 51 id., 270; Pitney v. The Glens Falls Ins. Co., 65 id., 6.

The fire took place on the 4th day of February, 1882. It does not appear that any notice of the loss was given to the' defendant But proofs of the loss were served upon it about the 23d day of February, and it claims that the plaintiff cannot recover upon the policy because he did not forthwith give notice of the loss as required by the policy. .There can be no doubt that the proofs of loss served upon an insurance company are a sufficient notice of the loss if served in time.

In the absence of special circumstances justifying delay it cannot be said that- a notice of loss served nineteen days after a fire is •“ forthwith.” But the word “ forthwith ” in such cases must have a reasonable construction. The assured must have a fair opportunity to serve his notice, and a delay of a few days, depending as to the length of time upon all the circumstances of the case, ought not to defeat a recovery upon the policy. So, too, if the insurance company intends to claim that the notice of loss was not served in time it should take its position promptly and not put ithe assured to the expense of complying with other conditions in the policy upon the assumption that adequate notice had been given. Here the proofs of loss were received and retained with-<rat any objection that the proper notice of loss had not been given. Hot only this, but the defendant requested the plaintiff to amend his propfs from time to time without any suggestion that the proper notice had not been given. The defendant had undoubtedly obtained through its agent early notice of the loss and was satisfied with that. Under all the circumstances the defendant may properly be held by its conduct to have waived the preliminary notice of loss.

The defendant makes the further objection that the proofs of loss were not sufficient in that they were not made by any person authorized to make them. They were made by the plaintiff and by the administrator and one of the heirs of Richards, and it does not appear that the defendant objected to them on the ground that any other person should join in making them. If the defendant claimed that the trustee Sage, or any other person, should join in making them, it should have specified the objection so that the plaintiff could obviate it.

We, therefore, reach* the conclusion that the judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


author: O’Brien, J.

text:
    Thomas F. Morgan, Resp’t, v. The Hudson River Ore & Iron Co., App’lt.

      (Court of Appeals,

      Filed May 24, 1892.)

    1. Master and servant—Negligence.
    Defendant had ten kilns for roasting ore, standing in a row, with a railroad in front of them inclined so that the cars would run down of their own weight. When ore in loading the cars fell so as to block them, the employees were instructed to remove it by shovels, rakes, etc., which were-provided. While so removing ore which had fallen plaintiff crept under the car after calling to his co employees not to let the other car run down. on him. The blocks, however, which secured the other ear in some way gave way, and running down it collided with the car under which plaintiff was and he was injured. Held, that when plaintiff went under the car to-pick out ore he voluntarily subjected himself to an unnecessary risk, and the unexpected movement of the car behind could not be attributed to any want of reasonable care on the part of the defendant.
    2. Same—Rules.
    There was nothing in the nature of the business that made it necessary for the defendant to enact and publish rules, and the court was not. warranted in submitting the case to the jury.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment in favor of plaintiff entered on verdict of jury.

      Frank F. Smith, for app’lt; Levi F. Longley, for resp’t

       Reversing 39 St. Rep., 694.

   O’Brien, J.

The plaintiff, a servant in the defendant’s employment, was injured while in the performance of his ordinary duties. On the trial the defendant’s counsel requested the court to charge-the jury as follows :

(1.) That the defendant was not guilty of any negligence in not. providing a safe and suitable place for the plaintiff to work.
(2.) That the defendant was not guilty of any negligence in. providing the plaintiff with suitable, safe and proper tools for performing his work.
(3.) That the defendant was not negligent in the employment o£ incompetent co-servants whose acts and omissions caused or contributed to plaintiff’s injury.
(4.) That the defendant was not negligent in failing to station a. suitable person at and along the track where plaintiff was at. work, charged with the duty of looking out for his safety.

The court was about to refuse some or all of these requests when the plaintiff’s counsel assented to the correctness of the propositions and joined with the counsel for the defendant in the requests, which were then given to the jury. This left but one ground upon which liability on the part of the defendant could be predicated, and that was its alleged omission to “ provide and promulgate rules and regulations for the guidance and government of the men engaged in' and about the dangerous work aforesaid.” The court was requested in behalf of the defendant to-rule and instruct the jury that there was no proof of negligence in this respect on the part of the defendant, which request was refused, and defendant excepted. The court, under the objection and exception of the defendant’s counsel, submitted the question to-the jury, and there was a verdict for the plaintiff, which the general term affirmed. As the only question to be considered is-whether there was any evidence of negligence in omitting to promulgate rules to submit to the jury, it is necessary to recall the facts"as they were proved at the trial. The defendant had ten-kilns for roasting ore, each about twenty-five feet in diameter,, standing in a row about ten feet apart and numbered from one totem They stand on a slight decline, number one being the highest A narrow guage railroad track runs along by the side of the kilns and within a few inches of them, upon which cars loaded with the ore are moved by horse power, and in that way taken to-the point of shipment, some 500 feet distant. At that part of the-track by the kilns the cars usually run down by their own weight,, though sometimes drawn by a horse.' Beyond kiln number tern they are drawn by an engine. In loading the cars from the kilns-the ore sometimes falls on the tracks and obstructs the movement of the wheels, and must be removed. There are shovels, rakes and pick axes there, with which the workmen remove the ore that-has thus fallen on the track. On the day of the accident, plaintiff was at work loading a car from kiln number three. The ore-ran over the car on the side next the kiln, so that it blocked the-wheels about a foot and a half from the track. It fell in front of the wheels on each side of the car, and it had to be removed before the car could be started. • The car was also blocked by a. piece of wood to keep it from moving down the decline. The-plaintiff, after filling the car, commenced to remove the ore under and in front of the wheels with a rake. Then he crawled under the car and lay down, and was engaged in cleaning out the ore-not removed by the rake with his hands when the accident happened. There was another loaded car just behind the plaintiff in front of kiln number two, and two other workmen were there at work.

The plaintiff spoke to them and told them to look out for his-safety, when he -was clearing out the car, not to move the car or let it run down on him until he got through. They said they would, but while the plaintiff was at work under his car the car above was in some way started and pushed the car under which the plaintiff was at work, and his fingers were caught under the-wheel and crashed. It seems that the wooden blocks under the-wheels of both cars had been removed by some one, but by whom, does not appear. There was evidence that the defendant’s superintendent had given oral instructions that the men in removing the ore from the track should use, and had directed them to qse the rakes- The foreman also says that he instructed the men to-use the shovel or to put their backs to the car and force it through., and over the accumulated ore, which could be done. It is evident that the injury is attributable to only two circumstances or causes. First, the presence of the plaintiff under the car in the position that he was when the injury was inflicted, and, secondly,, the removal of the blocks from the car behind him. When the plaintiff went under the car to pick out ore that obstructed the movement of the wheels he voluntarily subjected himself to an unnecessary risk, and the unexpected movement of the loaded car behind or above if not due to the negligence of the men in charge, ■could not upon the evidence be attributed to any want of reasonable care on the part of the defendant It must have resulted from a failure on the part of the plaintiff’s fellow workmen to properly block it or from some carelessness on their part, or some improper act on the part of some outsider, in removing the blocking while the plaintiff was under the other car. In either event, the defendant could not be held liable for the resulting injury. The recovery was based entirely on the absence of rules. It was not suggested at the trial, nor is it on this appeal, what particular rule the defendant could have adopted that would have been likely to prevent the accident. No evidence was given that any rule is in use in business of a similar character by other corporations of the same class carrying on like operations, nor was there :any evidence by experts or other witnesses to show that any rule was necessary or practicable in such cases.

It was left to the jury to say whether or not it was a case for rules, and if so- what particular rule should have been adopted. We know nothing with respect to the views entertained by the jury on these questions except so far as they are indicated by their verdict for the plaintiff. It is not probable that they concluded that any definite rule should have been' promulgated, but were content to hold that as the plaintiff was injured the defendant ought in some way to have prevented it, or, in case it did not, respond to him in damages. Almost every conceivable injury that a servant receives in the course of his employment may in this way be submitted to a jury and with the same result The plaintiff was one -of several workmen engaged in loading cars with ore and moving them on a track a few hundred feet in length. They were not moved ,by engines, but by the strength- of the men themselves and sometimes by the use of a horse. There -was nothing in the nature of the 'business that made it necessary for the defendant to •enact and publish rules. The business had been conducted in the same way for years before and no accident had happened, and none could reasonably be apprehended or anticipated. Even if it could be shown, after the accident occurred, that it might have been prevented by adopting and enforcing some suitable rule, that would constitute no proper test of liability. The failure to .adopt rules is not proof of negligence, unless it appears from the nature of the business in which the servant is engaged that the master, in the exercise of reasonable care, should have foreseen and anticipated the necessity of such precautions. It.appears that the defendant had general rules for the government of its •employees in its general business of mining and marketing ore, but that none of these rules applied to the operations at the kilns where this accident occurred. The work which was performed on this track and in and about these ten kilns must be considered separate from the defendant’s general business, and thus considered it is difficult to suggest any reasonable precaution that would, have saved the plaintiff from the injury.

The cases in which the master, by omitting to provide proper rules, subjects himself to the imputation of negligence are thus-stated in a work of authority: “ If a master is engaged in a complex business that requires definite regulations for the safety and protection of his employees, a failure to adopt proper rules, as well as laxity in their enforcement, is negligence per se, and the establishment of defective or improper rules is such negligence as renders the master, responsible for all injuries resulting therefrom.” Wood’s Law of Master and Servant, 794, § 403.

Within the principle here stated, and upon the authority of several recent cases, the court was not warranted in submitting, the case to the jury. Berrigan v. N. Y. L. E. & W. R. R. Co., 131 N. Y., 582; 42 St. Rep., 858; Corcoran v. D., L. & W. R. R. Co., 126 N. Y., 673; 38 St. Rep., 251; Larow v. N. Y., L. E. &. W. R. R. Co., 61 Hun, 11; 40 St. Rep., 26.

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

All concur.