text:
    Kate A. Scaggs, as Administratrix, etc., Resp’t, v. The President, Managers and Company of the Delaware and Hudson Canal Company, App’lt.

      (Court of Appeals,

      Filed February 26, 1895.)

    1. Negligence—Raii/road—Gate.
    A gatetender is not bound to do more than to take reasonable precautions against the occurrence of accidents to those passing over the highway through the railroad enclosure.
    8. Same.
    While the open gate, through which a person is permitted to enter by the gateman, is an affirmance of safety from the danger of any passing train, it does not dispense with the necessity of his being as vigilant, when upon the crossing in the railroad enclosure, as upon the ordinary highway.
    Appeal from order of the general -term of the supreme court in the third judicial department, "which reversed a judgment in favor of defendant entered upon an order dismissing the complaint on trial at circuit and ordered a new trial.
    The plaintiff brought this action to recover damages from the defendant for causing the death of her intestate. The accident occurred at the Division street crossing of the defendant’s railroad, in the village of Saratoga Springs. Division street crosses the defendant’s tracks east and west, at a point immediately south of the railroad station. The street crossing at this point is about forty feet in width and planked. Between the east and west sides of the railroad enclosure are five tracks. Gates existed, which shut off the entrance upon the tracks, and which were raised and lowered by the gateman, as occasion demanded. On the morning in question, a locomotive, attached to a train of cars, was standing on the easterly one of the five tracks, alongside of the station, waiting to go south and it projected from twelve to thirteen feet upon the highway crossing! The locomotive was making the usual noises, which accompany the escape of steam through the automatic or mechanical device for that purpose. The intestate was standing by the gatetender on Division street, on the easterly side of the crossing, waiting to pass when the gates were reised. A man named Priester, who was driving ahorse to a lumber wagon, was also waiting for the gates to be raised and was experiencing much difficulty in controlling the movements of his horse. He was the principal witness for the plaintiff in the case and he_ narrated the occurrence as follows: “ The train was there before I came to the crossing. When I came there the gates were down. I stopped my horse. They were letting off steam. The gates were down and the gates went up to let this woman through. When the woman got by the cowcatcher, he,” (meaning Bentley, the gatetender), “raised the gates and my horse went on.- * * * My horse was restless and uneasy. * • * * I was trying to manage it. * * * He raised the gates for the woman to go through; high enough so she could go through without stooping her head. * * * The gate remained in that position until she got by the cowcatcher; then when they went clear up, the horse started. After the gates were up and when my horse was on the first track, I hallooed twice to the woman and when the horse struck the first track the man and I got hold of the lines. We could not hold the horse and we struck the woman. * * * When my horse got on the track, the steam went up straight. It commenced popping off just as I got my horse on the track. When the engine commenced popping off my horse shied on one side.” Again he testified: “When my horse started from a point thirty or forty feet east of the first track, this woman was then in front of the cowcatcher, going across the track. That was when my horse started. When my horse got to the first track she was off that track. The engine was on the first track. There are four or five tracks. When my horse reached the first easterly track this woman was between the first and second tracks on the west side. There were two more tracks between the engine and the woman. I went over three tracks before I struck the woman. The woman was between the third and fourth tracks, counting from the east, when the horse struck her. She was walking diagonally across the highway, so that her back and side were towards me and she continued to walk, from the time I first saw her until she was struck, in that direction. * * * She was between the third and fourth tracks at the time she was actually struck. * * * The woman at the time was in the highway where the wagons go. * * * She was going towards the southwest side of the track; the lower side of the crossing ; that is, the south side: when she was struck. When my horse struck the first track, I hollered twice to the woman as loud as I could holler. She was then ahead of me a track and a half or two tracks.” Again he testified : “When I hollered to the woman, she did not pay any attention, but walked on in the same direction right across.” A by-stander, called as a witness on behalf of the plaintiff, testified with regard to what took place when the intestate was about to cross, as follows: “I stood there a little while and Bentley raised the gate and I looked and saw when he raised it that this lady passed through. I think it stopped when she went under and Bentley looked around towards the horse and raised the gate higher and the horse went through and that is the last I saw of the woman, as she went around the end of the engine. That is the last I saw of the woman or the horse.”
    At the close of the plaintiff’s case, the trial justice ordered a non-suit; holding, in effect, that the defendant had not been shown to be negligent and that whatever hazard there was in the intestate’s crossing, the railroad company did nothing that increased the hazard. The plaintiff appealed to the general term, where the judgment of non-suit was reversed, by a divided court, and a new trial was, ordered. The defendant thereupon appealed to this court, giving the usual stipulation for judgment absolute in case of the affirmance of the order.

      Lewis E. Carr, for app’lt; James W. Verbeck, for resp’t.

      Reversing 56 St. Rep. 319.

   Gray, J.

Upon the evidence which the plaintiff adduced in support of her. complaint, that the death of her intestate was caused by the negligence of the defendant, I think that she was properly non-suited. The facts very clearly showed that thei e was nothing done, or omitted to be done, on the part of the defendant to charge it with negligence; unless it be with reference to the act of Bentley, the gatetender, or with reference to the locomotive and train of cars standing by the station. If we consider, in the first place, what was done by the gatetender, we see him acting in the exercise of his judgment, in letting the deceased first pass under the gate to cross the railroad tracks. He was probably observant of the restless and unmanageable conduct of Priester’s horse and, therefore, did not at the'time raise the gate high enough to let the horse and wagon also through. But when the woman had passed by the cowcatcher of the engine, which was standing partly upon the street crossing, he then, and not till then, allowed the horse and wagon also to pass through the gates.

The gatetender’s conduct was not influenced by any fear of danger from passing trains; but, evidently enough, by a desire to prevent an accident to the woman from the restless horse. Obviously, when the woman had got by the engine, that danger would, in the ordinary exercise of human judgment, cease; and that would have been the fact here, if, after passing the engine, she had kept either upon her side of the street crossing, or, if she wanted to cross tne street, she had first looked to see if any danger was imminent But she did not do this. Instead of keeping to the north side of the crossing, after passing the engine, she crossed diagonally over the highway and with so little regard to what she was doing, as to pay no attention to Priester’s horse, although he hallooed to her twice. It is clear from the evidence that at the time when she was struck, she was so far beyond the gates she had entered and the railroad train standing on the east track, as to have been able to remain in, or to reach, a place of safety. I think, under such circumstances, it is impossible to predicate any negligence upon what the gatetender did. He was not bound to do more than to take reasonable precautions against the occurrence of accidents to" those passing over the highway through the railroad enclosure. Whatever peril existed, whether from the presence of the locomotive, or from the restive horse, was quite as obvious to the deceased as to the gatetender and, if we may assume that he committed any error, it was at most an error of judgment for which the defendant could not be made liable.

Nor was the deceased freed from the obligation to be herself vigilant, when making use of the highway crossing. She was as much bound to be vigilant in the use of her senses upon that part of the highway, as upon any other part. The open gate, through which she was permitted to enter by the gatemán, was an affirmance of safety from the danger of any passing train. It did not dispense with the necessity of her being as vigilant, when upon the crossing in the railroad enclosure, as upon the ordinary highway. Palmer v. N. Y. C. & H. R. R. R. Co., 112 N. Y. 234; 20 St. Rep. 904; Rodrian v. N. Y., N. H. & H. R. R. Co., 125 N. Y. 526; 35 St. Rep. 815. I am, therefore, unable to discover wherein the defendant may be deemed to have been in any wise negligent and responsible for what occurred to the deceased, because of any act of commission or omission on the part of the gatetender.

Considering, in the next place, the situation of the train at the station, waiting to go south with its load of passengers ; what was there in that fact upon which negligence in the defendant can be predicated ? In the opinion of the two general term justices, who concurred in the ordering of a new trial, “ the very position of this engine in the public highway, and the occupation and blocking up of said highway by it, was of itself an act of negligence.” This extraordinary view they based, or rather felt constrained to take, upon the authority of Borst v. L. S. & M. S. R. Co. 4 Hun, 346. In that case the locomotive and train were in the public highway and the plaintiff’s horse, while passing along the street, was frightened and shied, so as to run against a wagon and throw out and injure the plaintiff. In that case, the plaintiff claimed that the steam from the defendant’s engine blew out more, while he was crossing the track, than it did when he was signaled by the flagman to do so; and the question which the general term passed upon was the correctness of the refusal of the trial justice to charge, “ that if the jury should find that there was any additional noise coming from the engine, after the plaintiff started to cross the track, that unless the increase of noise was caused by the negligence of the defendant or its servants, the defendant was not liable therefor in this action, although such noise frightened plaintiff’s horse, and contributed to this injury.” It seems that the trial justice explained, in refusing the request, that when the flagman beckoned the passenger, who was waiting in the highway, to cross the track, he had “a right to suppose that no change will take place in anything under the control of the railroad company, likely to increase the danger,” This explanation was deemed to be sufficiently correct and the general term said: “ If more steam was emitted from the engine while he was passing than before, that was an unfair surprise to the plaintiff, and if it contributed to the injury, it was the fault of the defendant’s agents, for which the defendant was responsible.” That is by no means this case. In the first place, we are not informed from the record in that case whether the escape of steam was, as here, the necessary result of a mechanical device upon the locomotive; and, in the next place, there was a sudden increase of the noise from escaping steam at the time the plaintiff passed. In the present case, there ’was no change in the conditions, which existed while Priester was waiting to pass through the gates and the conditions which existed when he passed the locomotive. The escape of steam was from an automatic safety valve, which, when the engine is standing, prevents the dangerous accumulation of steam, by letting it off when the pressure reaches a certain point. It cannot, of course, be pretended that the use of such a device, adopted for protection from danger and which acts mechanically and not under the control of the engineer, is negligence. Another distinction between the Borst ease and- the present one, not altogether unimportant to be noticed, is that the recovery there was sought for by a party who was injured by the frightening of his horse and was based upon, as I have before mentioned, a change of conditions from the time when the flagman invited him to cross the tracks, and the time when, passing the engine, there was a sudden increase of noise.

Nor can it reasonably be said that the position of the locomotive in the public highway was an act of negligence, which renders this defendant responsible for what happened here. The position of the locomotive had nothing whatever to do with the accident to the woman. She was some distance beyond the locomotive and in a place of perfect safety, as to any danger from a passing vehicle, if she had chosen to look out for its approach. Whether the locomotive stood upon the highway to any extent was a circumstance, which had no possible connection with what happened to the woman. If Priester’s horse was so frightened by the escaping steam as to get beyond his control, precisely the same result would have happened if the engine had been fifty or more feet back from where it was. Either we must say that the woman should not have been allowed, to pass through the gates, while Priester was waiting to pass with his restive horse, which would be absurd ; or we must say that the gatetender, out of an individual consideration of the facts under his observation, used his best judgment, when he allowed the woman to pass under the gates first and then, seeing her beyond the projecting locomotive and, presumably, in a place of safety, raised the gates higher for Priester to pass through with his horse and wagon.

Without further discussion of the case, I am of the opinion that the plaintiff was properly non suited. The facts in evidence, as they group themselves in the mind, make it clear that the plaintiff’s intestate received the injuries, from which she died, by reason of an occurrence, for which the defendant is not in anywise responsible, viz.: the breaking away of Priester’s horse from his control. Priester had a perfect right to pass over the crossing. There was no train passing, or expected to pass, at the time; and the deceased, in crossing diagonally over the highway, without apparently looking about her, assumed all the hazards.

The order of the general term should be reversed and the judgment of the circuit court affirmed, with costs.

All concur.

Order reversed and judgment affirmed.


source: Caselaw Access Project

author: Haight, J.

license: Public Domain

text:
    Howard J. Ansteth, an Infant, etc., Resp’t, v. Buffalo Railway Company, App’lt.

      (Court of Appeals,

      Filed February 26, 1895.)

    1. Negligence—Railroad—Trespasser.
    The servants of a railroad company have the right to remove a trespasser from a car, but in doing so are required to subject him to no unnecessary hazard.

      2. Same.
    In order to justify a recovery in such case, the act of the servants must have been improper, unnecessarily dangerous, the proximate cause of the injury,-and done for the purpose of removing plaintiff from the car.
    Appeal from judgment of the general term of the superior court of Buffalo, entered upon an order, which affirmed a judgment in favor of plaintiff entered upon a verdict and also affirmed an order denying a motion for a new trial.

      Porter Norton, for app’lt; Adolph Rebadow, for resp’t.

      Affirmed 61 St. Rep. 702.

   Haight, J.

This action was brought to recover damages for injuries sustained by the plaintiff in alighting from one of defendant’s street railroad cars on Plymonth avenue in the city of Buffalo on the 21st day of October, 1892.

The plaintiff was a boy ten years of age, and was at the time of the accident stealing a ride upon one of the defendant’s cars. He stood, as he testified, upon the step of the front platform with one hand upon the handle of the dashboard and the other upon the handle on the corner of the car. While standing in this position the conductor passed through the car out upon the front platform, and with one hand reached out toward him (the witness indicating) and cried, ‘‘ Hey ! ” At this he let go of the handle upon the dashboard, fell from the step, and his body swung around against the side of the car, he still holding to the handle upon the corner and in that position remained whilst the car proceeded ten or fifteen feet. He then dropped, falling by the side of the car in such a manner that the wheels passed over one of his legs.

Upon the trial motions for non-suit and for direction of verdict were made and denied.

In Clark v. N. Y., L. E. & W. R. R. Co., 40 Hun, 605; aff’d, 113 N. Y. 670; 23 St. Rep. 994, the plaintiff was a boy of the age of thirteen years. He caught on to the forward end of the caboose of a moving freight train. One of the company’s employees saw him and dashed a cup of water in his face, causing him to fall from the car in such a manner as to have his knee crushed by one of the wheels. It was held that he could recover.

In McCann v. Sixth Ave. R. R. Co., 117 N. Y. 505 ; 27 St. Rep. 834, a boy, in crossing the street, whereon were two tracks of the defendant’s road, in order to get out of the way of a truck passing upon the street, jumped on to the rear platform of a car which had stopped at the crossing, and, as he was passing across the platform, the conductor kicked at him, and, to avoid the kick, he jumped from the car, landing in the other track, without looking, and was struck by a car moving upon that track. It was held that a non-suit was improper.

In Hogan v. Central Park, N. & E. River R. R. Co., 124 N. Y. 647; 36 St. Rep. 352, a boy twelve years of age, was stealing a ride upon the rear platform of one of the defendant’s cars, which was managed by the driver alone. A number of boys had jumped on to the car for the purpose of stealing a ride, but at the command of the driver they all got off except the decedent, who continued to sit upon the left side on the rear platform. As the car crossed Second avenue another lad jumped on to the right side of the platform, for the purpose of obtaining a free ride, and thereupon the driver started towards thé rear platform for the. purpose of compelling the boys to leave the car, but before he reached them they jumped off, the plaintiff’s intestate on the left side of the car, and in doing so fell under one of the defendant’s cars running on the other track and was killed. The driver did not let go of his lines, with which he managed his horses, nor approach within serveral feet of the boys, nor threaten them with violence. It was held that the judgment in favor of the plaintiff should be reversed.

The plaintiff was a trespasser, and the defendant owed him no duty of protection. Its servant had the right to remove him from the car, but in doing so were required to subject him to no unnecessary' hazard. They had no right to seize him and throw him from the car whilst it was in motion, or to so violently assault or frighten him as to cause him to fall from the car. In order to justify a recovery the act of the defendant’s servant must have been improper, unnecessarily dangerous, the proximate cause of the injury, and done for the purpose of removing the plaintiff from the car. „

As we have seen, the conductor went out upon the front platform, extended his hand toward the plaintiff, and cried out “ Hey ! ” The boy tells us that it frightened him and that he fell off. ' The record does not give us much information with reference to the character of the act, whether it was violent or threatening. It does give ns to understand that the witnesses indicated to the jury, by illustrating with the arm, the manner and character of the act. We consequently may assume, in aid of the judgment, that the act was of such a nature as to justify the plaintiff in believing that he was about to receive punishment or bodily injury.

The case may be close and upon the border, but we incline to the view that we cannot interfere.

The judgment should be affirmed, with costs.

All concur, except Andrews, Cb. J., and Gray, J., dissenting. Judgment affirmed.


author: O’Brien, J.

text:
    Ellis H. Roberts & Co., App’lts, v. John Buckley et al., Impleaded, etc., Resp’ts.

      (Court of Appeals,

      Filed March 5, 1895.)

    1. Assignment nor creditors—Construction.
    The assignment and the inventory and schedules must be interpreted according to the intention of the parties and, if possible, such a construction should be adopted as will sustain, rather than defeat, the assignment.
    2. Same—Fraud.
    The onus is upon the party charging fraud to show affirmatively some illegal provision or some act, consciously and purposely done, which is inconsistent with an honest purpose.
    3. Same.
    A direction in the assignment for the payment of a debt at a greater amount than is justly due, will not invalidate the instrument, in the absence of a fraudulent intent.

      4. Same.
    The character of the instrument itself must be determined upon the facts and the situation existing when it was delivered and recorded.
    6. Same.
    Before the court can condemn an instrument as fraudulent, because it provides for the payment of a fictitious debt, it must appear that the assignor has, with a fraudulent purpose in view, knowingly and consciously, directed the payment of a claim which, to his knowledge, had no real existence either in whole or in some substantial part.
    6. Same.
    A statement of a debt in an assignment or an inventory at an excessive sum is not conclusive evidence of fraud, which will render it void as matter of law.
    7. Same.
    A presumption arising from a particular act, unexplained and unqualified, whether the presumption is of a crime or a fraud, can be removed by evidence that the act was the result of mistake or inadvertence, and that the intention was innocent.
    8. Same—Amendment.
    The Couni y judge has power to make an order amending the schedules and inventory nunc pro tune so as to conform substantially to the statement of the debt in the assignment, especially if it provides that it is not to operate as against the contesting creditors to impair or predjudice any right or lien which they had acquired against the assigned property prior to the time of the entry of the order.
    9. Same.
    Such order when made is just as much a part of the assignment as the inventory which it modifies.
    10. Res ad judicata—Second division.
    Where the facts upon a former appeal to the Second Division of the Court of Appeals are identical with those presented on a subsequent appeal to the regular branch of this court, the latter must follow the former decision, even though convinced, if the case was res nova, that the members of the Second Division took an erroneous view of the law.
    Appeal from judgment of the general term of the supreme cóurt in the fourth judicial department, entered upon an order which affirmed a judgment in favor of defendants entered upon the report of a referee.

      George F. Danforth and James Dunne for app’lts; William J. Cookingham for resp’t, Bulger; W. A. Matteson for judgment creditors, resp’ts.

      Affirming 61 St. Rep. 561.

   O’Brien, J.

The plaintiff, a domestic corporation and judgment creditor of the firm of John Buckley & Co., brought this action to set aside a general assignment made by the firm for the benefit of creditors, to the defendant Bulger, on the 1'7th of March, 1886. The complaint charges that it was made to hinder, delay and defraud creditors and is, therefore, fraudulent and void.

At the time the assignment was made, suits were pending against the firm in behalf of various creditors, in which judgments were rendered subsequent to the assignment, and executions levied upon the property in the hands of the assignee. The complaint stated that the action was brought, not only for the purpose of enforcing the judgment of .the plaintiff and the lien obtained or claimed under the execution issued thereon, but also in behalf of all other creditors who were similarly situated and who desired to join in the prosecution of the action. The other creditors who had obtained judgments and claimed liens, acquired thereunder, were made defendants and, among them,.the firm of Yietor & Achelis who had a large debt and claimed a lien by attachment, issued in an action for the recovery of the debt, in which an attachment had been granted and levied upon the property after- the assignment. This firm, by answer, joined with the plaintiffs in assailing the assignment upon the allegations of fraud contained in the complaint, and the action finally assumed the form of a controversy between this firm and the assignee, both defendants, ail the other creditors, including the plaintiffs, having practically abandoned the contest in regard to the validity of the assignment, though there has been no change in the parties or the form of the action.

On a former trial before a referee and a review at the general term, the assignment was held to be free from fraud and entirely valid. The judgment, however, was reversed in the Second Division of this court and a new trial granted. Roberts v. Vietor, 130 N. Y. 585; 42 St. Rep. 729,

This appeal is from an affirmance of the judgment rendered on the second trial, before another referee, in which it was again decided upon a full trial that the assignment was valid and the charges of fraud not sustained.

These charges were originally aimed at claims preferred in the assignment, in favor of various of the creditors, with respect to which it was alleged that they had no existence in fact and were fictitious and fraudulent, and preferred in the assignment with a fraudulent intent and for a fraudulent purpose. In the progress of the litigation, which is of long standing, the charges against these preferred debts have all been abandoned except so far as they relate to the claim of a single creditor. The charge of fraud now rests entirely upon the facts and circumstances connected with the debt of Daniel Gr. Major, the brother-in-law of Buckley, one of the assignors, and whose claim was preferred in the third class. The complaint alleged that the debt so preferred was fictitious and fraudulent and so invalidating the whole assignment. This was the" simple" and well-defined issue before the referee on the last trial, and this appeal presents only q.uéstions resulting from the trial of that issue.

Whether the debt, which the assignors directed the assignee to pay to this creditor, was honest or merely fictitious and thus fraudulent, was the question and the only question in controversy. From the very nature of the issue the whole controversy turned upon a question of fact which is ordinarily capable of ready and easy solution in any mode of trial. The learned referee has determined this issue in favor of the assignment. He has found that the debt preferred in the assignment to this creditor was honest and free from all fraud, that it was justly due to the creditor from the assignors, and that no part of-it was fictitious. The consideration of the debt and all the facts and circumstances ■connected with its origin, creation and preference in the assign-merit, have been fonnd with great fullness of detail against the -contention of the creditors assailing the assignment. After such an issue has been twice tried and as often reviewed in an appellate court, having jurisdiction over questions of fact, it is seldom that any question is left demanding serious consideration in this court. But the judgment which was the result of the first trial was reversed, as we have seen, upon the former appeal, and the -case has again been argued in this court by distinguished counsel who insist with great earnestness that the same result should follow this appeal. Moreover, the discussion among ourselves reveals the fact that some of my brethren are disposed to take that view of the case. These circumstances and tills situation will perhaps justify a more extended discussion of the question decided in the court below, and in the Second Division upon the former appeal, than would otherwise be thought necessary.

There is no dispute concerning the rules of law that govern in such a case, with respect to the construction to be given to the assignment and the inventory and schedules. They must be interpreted, like all other instruments, according to the intention of the parties and, if possible, such a construction should be adopted as will sustain the assignment, rather than defeat it, in accordance with that quaint rule given by Coke: “Whensoever the words of a deed may have a double intendment, and one standelh with law and right, and the other is wrongful and against law, the intendment that standeth with law shall be taken.” (Coke's Litt. 42.) The onus is upon the party charging fraud to show ailim.atively some illegal provision or some act, consciously and purposely done, which is inconsistent with an honest purpose. A mistake in the inventory of the property or in the assignment, with respect to the description of the debt, or its amount or form, in the absence of actual fraud, will not invalidate the instrument. As was said by Judge Finch, in one of the cases cited below : “It would be hard to find any schedule absolutely perfect, or any debtor who could inventory every item of "his property with strict accuracy. Boom must be allowed for honest mistakes, and possibly even for careless and thoughtless error.” When the instrument and the acts of the parties are fairly capable of a construction consistent with innocence and the general rules of law, "they should be given that construction in preference to one which would impute a fraudulent intent or defeat the general intent and purpose of the conveyance. Townsend v. Stearns, 32 N. Y. 209 , Shultz v. Hoagland, 85 id. 467 ; Bagley v. Bowe, 105 id. 171; 6 St. Rep. 842 ; Crook v. Rindskopf, 105 N. Y. 476; 8 St. Rep. 66. Nor will a direction in the assignment for the payment of a debt at a greater amount than is justly due invalidate the instrument, in the absence of a fraudulent intent. In a recent case the debt was preferred for $20,000 in excess of what was really due, and that excess paid to the creditor. We held that as there was no actual fraud the assignment was not avoided, but the assignee could simply recover back the excess paid. Peyser v. Myers, 135 N. Y. 599 ; 48 St. Rep. 825.

The assignment in this case was valid or invalid, fraudulent or honest at the moment it was made. When it was delivered the title to the property passed under it, if ever, and if at that time,, it represented an honest purpose and was made in good faith, fraud could not be fastened upon it afterwards by any acts or statements of the assignors, whether verbal or written.

These acts and statements, at most, could amount to nothing more than evidence reflecting light with more or less force, according to their nature, upon the intent and purpose with which the-assignment was made, and thus bearing upon the issue of fact between the parties. But the character of the instrument itself must be determined upon the facts and the situation existing when it was delivered and recorded. The assignment in question directed the assignee to pay in full certain debts enumerated in schedule G annexed, after having first paid and discharged in full, with interest, the two other classes of preferred creditors described in the two preceding schedules. On turning to schedule 0 we there find the debt of Major, upon which the issue of fraud in this case turns, and which it is alleged is fictitious, described in these words:

The assignee was thus directed, if anything remained after paying the debts of the two first classes of preferred creditors, then to pay the debt in question to Major, consisting of certain notes and accounts which the debtors were unable to describe, the aggregate of which was stated at about $12,000, to be increased, however, by adding interest, to be computed from the dates and upon the amounts mentioned in the last column. They did not even pror fess to state these dates or amounts with accuracy, since they added the qualifying words,' “ as near as assignors are able tosíate ” in the column headed “ date for interest.” The debt preferred was a gross sum of about $12,000, without professing to give the items, since the dates and amounts in the last column were nothing but mere data for computing interest.

The primary and controlling question in the ease is whether the debt thus described in fact existed, or was honestly due to the creditor, or was merely fictitious and fraudulent. All the other facts in the case are merely "collateral to this, the main fact, and are of but little consequence except so far as they furnish matter of evidence bearing upon this central point of the whole controversy. The learned referee found upon abundant evidence that the debt existed, and by full and comprehensive findings of fact negatived every allegation of fraud. He found that on the day the assignment was made, the .assignors honestly owed this preferred creditor $12,656.38. The several obligations entering into the debt, as a whole, were produced before the referee, and he has made an express finding as to each item. They consisted of six promissory notes and two checks of the following amounts and dates : FTote Feb. 26, 1883, $1,000 ; June 1, 1883, $1,000 ; Oct. 4, 1883, $500; Jan. 31, 1884, $1,000; Feb. 12, 1884, $3,000 ; May 6, 1884, $3,000 ; May 6, 1884, check, $500 ; May 17, 1886, cash advanced, $2,538.75. After computing interest on these amounts from the dates given and crediting payments, the balance is the debt found by the referee. These findings were made upon evidence that cannot even be said to be at all conflicting and there is not the slightest dispute as to the facts. The learned counsel for the contesting creditors made no suggestion in his oral or written argument against the existence of the debt in fact, as found at the trial, or as to the sufficiency of the words used in the assignment to authorize the payment. It appeared upon the trial that the $1,500 item in the schedule had been paid and that it was inserted in the schedule by mistake aud this fact is found upon evidence entirely satisfactory. So it also appeared and is found that when the several obligations were produced before the referee they differed in dates and amounts, in some cases slightly, and in others more materially, from the dates and amounts of the several items in the schedule. The reason for this variance was satisfactorily shown and is found by the referee. Moreover, the assignors did not profess to describe the items with accuracy as already observed. Certainly there is nothing in the variance between the items in the assignment and those in the referee’s report, if indeed there can be said to be any variance at all, to impeach the assignment. (Smith v. Smith, 136 N. Y. 313 ; 49 St. Rep. 398 ; Richardson v. Thurber, 104 N. Y. 606 ; 6 St. Rep. 489 ; Pratt v. Stevens, 94 N. Y. 387.) It is so entirely obvious that the preferred creditor had the right to prove any honest debt that he had to the extent of about $12,000, irrespective of the amounts and dates in the last column, that the variance if any, is not of the slightest importance. To call the debt or any part of it fictitious because made up of amounts with dates differing from those in the last column is a plain perversion of terms that is quite inconceivable.

The assignment has, thus far, been considered only as it existed when delivered and recorded, and is affected by the facts disclosed at the trial and found by the referee. It is quite clear that, thus considered, it was not invalidated by reason of anything appearing upon its face or any extraneous fact found at the trial. The learned counsel for the contesting creditors, up to this point, has not been able to find anything in the case to sustain his position, or which tends to show that at the time the assignment was made there lurked in it any element of fraud, and, consequently, his assault upon the instrument is based entirely on what occurred afterwards ; and this brings us to that feature of the case which, thus far, has played an important part in this controversy.

On the 7th of April, twenty days after the assignment was made, the debtors filed the inventory and schedules required by the statute. (Laws of 1877, chap. 466, § 3.) They were'verified by them two days before and contained the following statement with reference to the debt in question:

The dates and amounts of the several items are identical with those in the assignment, but the qualifying words there found were omitted, and hence it is urged that it is an unequalified statement of the debt, which was untrue,'for the reason that it exceeds, by the sum of $845.32, the true amount as found by the referee.

The direction of the debtors to the assignee was to pay the debt described in the schedule attached to the assignment, not, necessarily, to pay that described in another schedule not made until twenty days afterwards. The direction in the assignment was, as we have seen, to pay a debt consisting of a gross sum of about $12,000, the items of which could not be specified, certain amounts and dates being given for the computation of interest. When the assignors came to make the inventory, twenty days afterwards, they did not and could not change this direction. If the last description of the debt differed from the first the assignee was not necessarily controlled by the latter. It might be evidence of a fraudulent intent^ when connected with other facts entitled to greater or less weight, according to the circumstances, but it could not, of itself, invalidate what was valid before. The assignee was not confined to the inventory for a description of the debt or for the amount directed to be paid. He could look beyond it and to the whole instrument, and, in any event, he could not be compelled to pay any more than should appear to be justly due. The administration of an estate conveyed to a trustee for the benefit of creditors devolves upon the county court under the statute, and ample provision is there made for the examination and determination of all claims against the estate by that court and by a jury, upon the application of the assignee or any creditor. If the debt was magnified in the inventory beyond its true amount, that would not, necessarily, make it fictitious unless it was fictitious when the assignment was made. Before we can condemn an instrument as fraudulent because it provides for the payment of a fictitious debt it must appear that the assignor has, with a fraudulent purpose in view, knowingly and consciously directed the payment of a claim which, to his knowledge, had no real existence, either in whole or in some substantial part. It is scarcly necessary to say that there is no such finding in the case, but ample findings to the contrary.

This court will sometimes look beyond the findings and into the evidence to sustain a judgment, but not to reverse it. But even if we should consider every fact aud circumstance urged by the learned counsel for the contesting creditors, it would be impossible, I think, to give any other construction to the whole instrument than an authority to the assignee to pay what should be found due to the preferred creditor, and upon its face, when properly construed, it contains no direction to pay a fictitious debt.

But it is said that this court in the second division took a different view of the effect of the inventory in deciding the former appeal, and that we are bound by that decision. If the facts then and now are identical, it is our duty to follow the former decision, even though convinced, if the case was res nova, that our brethren of the second division took an erroneous view of the law. It is necessary to adhere to this principle if there is ever to be an end to litigation. It is important, of course, that private controversies should be determined in the court of last resort according to law and justice; but the infirmities of human judgment are such that different tribunals will not always take the same view of the question. When, however, the question has been once decided in this court, or in the second division, with co-ordinate powers, the same parties, in the same case, upon the same facts, cannot be permitted to re-open the discussion without great detriment to the public interest and destroying that respect for the decisions of courts, which it is important should be maintained.. Cluff v. Day, 141 N. Y. 580; 60 St. Rep. 321; Mygatt v. Coe, 142 N. Y. 78; 58 St. Rep. 408; Moore v. Simmons, 133 N. Y. 695 ; 45 St. Rep. 869.

But the view that I take of this case does not trench upon this principle in the slightest degree. This is not now the case that was before the second division, but a new case, with new findings and new facts. No court has ever yet held, and certainly the learned court that decided the former appeal did not hold, that the statement of a debt in an assignment or an inventory at an excessive sum was conclusive evidence of fraud, that rendered the assignment void as a matter of law. On the contrary, it is as well settled, as any'principle can be, that such an act does not invalidate the assignment in the absence of actual fraud. If it is the result of mistake or inadvertence, that may be shown.' Nothing contrary to this principle was decided on the former appeal, when properly understood, and, in order to get a clear view of the question, we must know just what was then decided and how the ease now stands. 0

The former judgment was not reversed for the reason that the $1,500 item was found to have been paid, nor because the $5,000 item did not exist in the precise form stated but in other forms, nor for the reason that there was a mistake of a day or two in the date of a thousand-dollar note, but simply and solely for the reason that the debt was stated at an excessive sum without qualification or explanation. This is entirely clear from the opinion, though it may not be so clear from the head note. Judge Haight, who spoke for the majority, after stating the facts, then states the legal question involved in these words:

“ It is contended, however, that it was the indebtedness of Major that was preferred and not the items making up such indebtedness, and that a mistake in giving the items should not void the assignment, provided that other items of indebtedness in fact existed. This view would deprive the other creditors of the advantage given them by the statute of knowing ‘ the true'cause .and consideration ’ of the claim, but without assenting to the correctness of the proposition we may, for the purposes of this argument, assume it to be sound. The fact still remains that the amount actually owing Major falls short of the amount preferred in the sum of $845.32."

The significance of this language is obvious. The learned judge begins by'assuming without deciding, that a certain proposition, which he states, is sound, and then in effect he says, conceding all that, the fact still remains that the debt stated exceeds that found by $845.32, and the opinion then proceeds to deal with the legal effect of that fact, and deals with nothing else. The general result of the whole discussion is stated in the following paragraph of the opinion:

“ The referee has said that the assignment was made in good faith, and without intent to hinder, delay or defraud the creditors, but the provisions of the assignment carried out deprives the general creditors of this sum, and the rule is that every party must be deemed to have intended the natural and inevitable consequences of his acts, and where his acts are voluntary, and necessarily operate to defraud others, he must be deemed to have intended the fraud.”

The court applied to the case the familiar principle that a person is presumed to intend the natural and necessary consequences of his act. That, however, is never anything but a presumption, and it was never held that the presumption arising from a particular act, unexplained and unqualified, whether the presumption was of a crime or a fraud, could not be removed by evidence that the act was the result of mistake or inadvertence, and that the intention was innocent.. Of course the learned court never intended to hold, and did not hold, that an act which, unexplained, created an inference of fraud, could not be explained so as to render it consistent with innocence. The court dealt with two questions, one a question of fact, and the other a question of law. It was assumed that the statement of the debt in the inventory, entirely detached from the qualifying words in the assignment, and standing alone, magnified the claim beyond its real amount., and from that fact, standing in the record unexplained and unqualified, there followed the inference of fraud as matter of law, which vitiated the assignment. There was then no evidence and $10 finding of fact in the case to rebut the presumption. The -only finding then in the case was the general one that the assignment was made in good faith and without any fraudulent intent, but that did not cover the point, since the vice which the court found was not in the assignment but in the inventory, filed twenty days afterwards. There was no evidence and no finding whatever as to the circumstances under which that paper was executed, or as to the intent and purpose with which it was made. There was nothing to change the presumption which it created, or to break its force and effect as prima facie evidence. The court assumed that such a result would be possible, and, therefore, granted a new trial. If it was not possible, or if the statement was deemed conclusive, of course that ended the case and final judgment should have been given.

It is very clear, I think, that the case as now presented is entirely changed. New evidence was given at the last trial in regard to all the facts and circumstances attending the execution ■and filing of the inventory and the intent and purpose of the parties, and the referee has made comprehensive findings which cover ■every point. These findings were made upon evidence not only uncontradicted, but, in itself, very reasonable and probable.

It appeared that when the assignment was made the creditor, who resided in Washington, was absent upon the western plains in the service of the government as an engineer. A firm of attorneys at Utica acted for him, and, not knowing all the facts and details of the debt, described it as best they could. Another firm was employed by the assignor to draw the assignment, and they obtained the data relating to the debt in question from the attorneys acting for the creditor. The assignment when drawn and completed by one member of the firm, was handed by him to his partner, who took it to the assignors for examination. It was then found that the assignors could not describe the debt with perfect accuracy, as some of the books upon which it appeared were not in their possession, and some portion of the money had been paid by the creditor to third parties for the benefit of the assignors. This situation caused the insertion tnen and there for the first time of the qualifying words found in schedule 0, and in this form the assignment was executed and recorded, but the partner, who drew the assignment, was not informed of the change made after it left his hands. Twenty days afterwards this same partner drew the inventory from the same data and memoranda which he used in drawing the assignment, and, being ignorant of the change made in his work by the insertion of the qualifying l- words, he described the debt in the inventory as he had described it in the assignment, intending in both papers to describe the same debt in the same way.

These facts are all found by the referee, who then finds that the inventory was made and verified by the debtors under the belief that it had been prepared by the attorneys who had charge of the matter, but who had inadvertently given an incorrect description of the debt; that they acted in good faith, without any intent to hinder, delay or defraud creditors, honestly intending to set forth their indebtedness without stating the precise items of the same,, which they were unable to state, and without intending to modify or change the statement contained in the assignment.

The objections of the learned counsel for the contesting creditors cannot prevail in the face of these findings.

The complaint also asks relief against the judgment which this-preferred creditor recovered upon an offer of judgment on the same day that "the assignment was recorded. It is alleged that the judgment is fraudulent because the debt was fictitious, and the relief demanded is that it be vacated and set aside as void. If the views expressed with respect to the assignment should prevail,, this phase of the case is of no importance, since the property would vest in the assignee discharged from the lien in any of the subsequent judgments. In any event this feature of the case presents no question of law.

The issue in regard to the judgment was one of fact. The evidence was the same as upon the same issue in regard to the-assignment, except that the inventory plays no part in the inquiry. The judgment, when recorded, was for a sum in excess of the real debt of over $800. The referee found that it was to that extent excessive, but not fraudulent That it was rendered in good faith for the purpose of securing an honest debt. This finding' alone is a complete answer to the objections now made. The-judgment was subsequently modified and reduced to the true sum on an application to the court. The court certainly had power to-correct its own judgments, and even if it had never been corrected it was good for the sum actually due in the absence of a fraudulent-purpose which is completely negatived by the findings of the referee. The order correcting the judgment was entered nunc pro tune as of the date of the judgment. No one appealed from it,, and it now stands. as the result of the exercise of power resting largely in discretion."

Since the judgment was good without the order for what was honestly due, it can work no injury to any of the parties to this-action. Besides the original judgment was given in evidence by the contesting creditors, and it was then proper to show by the order correcting it that the excess had been eliminated from the record.

After the decision of the former appeal, upon the application of the assignors, with notice to the assignee, the county judge-made an order amending the schedules and inventory nunc pro tune so as to conform substantially to the statement of the debt in the assignment. This order was given in evidence under the objection and exception of counsel for the contesting creditors. The county judge had the power under the statute to make the order. The statute confers it in plain words, thus providing for correcting mistakes or defects in the inventory, which ought not to be permitted if the statement of the debt when" once made could be held conclusive. The form in which it was drawn and the time when it might "take effect were matters of discretion to be corrected, if erroneous, by appeal, since the order was not void but at most erroneous. The order when made was just as much a part of the assignment as the inventory which it modified, and as it was the basis for the distribution by the assignee of the assigned estate it was for all general purposes evidence of the claims directed to be paid. The only question is how far it could affect an action pending when it was made. The referee expressly held and found that it could not operate as against the contesting creditors to impair or prejudice any right or lien which they had acquired against the assigned property prior to the time of the entry of such order. This ruling protected the contesting creditors against any possible injury and leaves them without any legal or just ground for complaint. These amendatory orders had little if any bearing upon the question whether an honest or fictitious debt had been preferred, and as against the contesting creditors were given none. At most they were simply harmless documents on the record. The case in every aspect and upon every point was correctly disposed of in the courts below, and the judgment should be affirmed, with costs to the assignee against Vietor & Achelis, the attachment creditors.

Andrews, Ch. J., Finch and Peckham, JJ., concur; Gray, Bartlett and Haight, JJ., dissent; Gray, J., on ground that the court is concluded by the decision in 130 N. Y. 585, in this case, because by the construction there given to the act the inventory is a part of the transaction of assignment and is to be read into the assignment.

Judgment accordingly.


author: Pryor, J.

text:
    Matilda Schoellkopf, Plaintiff, v. Jacob Ohmeis, Defendant.

      (New York Common Pleas, Special Term,

      Filed February, 1895.)

    Judgment—Amendment.
    A judgment against a party sued by a wrong name and not appearing in the action, is a nullity, incapable of amendment.

      Howe & Hummel, for the motion ; Edward Grosse, contra.

   Pryor, J.

Served with a summons against Jacob Ohmeis. Joseph M. Ohmeis failed to appear in the action; and upon his default and an inquisition of damages, judgment has been entered against Jacob Ohmeis. The plaintiff moves to amend the process and proceedings, nunc pro tunc, by substituting the name Joseph M. Ohmeis for Jacob Ohmeis.

It is not disputed that Joseph M. Ohmeis is the person against whom it was intended to prosecute the action.

The precise question in controversy, whether after judgment an amendment may be allowed so as to conform the process and proceedings to the real name of a party sued by a wrong denomination, and though served not appearing in the action, seems not to have been determined by any court of this state. In Tasker v. Wallace, 6 Daly, 364, it is not shown but that the defendant entered appearance; and by all authorities an appearance corrects the irregularly. For if the defendant fail to plead the misnomer he waives it, or if he pleads it he must give the true name, and thereupon an amendment is of course.

It is the law of this state that “service of summons upon a party by a wrong name does not give' the court jurisdiction over his person, and his appearance canndt be compelled” Farnham v. Hildreth, 32 Barb., 277, 279. By necessary consequence, if he do not appear a judgment against him in such name is a nullity. Moulton v. Demaclarty, 6 Robt., 470, 477 ; Waterbury v. Mather, 16 Wend., 611, 613 ; Griswold v. Sedgwick, 6 Cowen, 456.

In some jurisdictions the rule may be otherwise, First Nat. Bank v. Jaggers, 31 Md., 38; but I am concluded by our own adjudications.

Joseph M. Ohmeis having never been in court, and so the judgment a nullity, there is nothing to amend. A thing void is a thing irreparable; and no energy in the law suffices to make something of nothing.

Again, Joseph M. Ohmeis, not being obliged to respond to the summons, was never in default, and the inquisition of damages was unauthorized as against him.

Moreover, should the judgment be now validated, he will be held to a liability, he was not called upon to contest and which he did not contest. No man can be bound by the result of a litigation except by actual appearance or legal command to appear.

Comprehensive as is the scope of section 723 of the Code, it cannot embrace a case of which the court has not jurisdiction, nor make valid what is void.

Motion denied, with costs.


author: Bischoff, J.

text:
    Edward Burrell, Resp’t, v. Do Sim et al., App’lts.

      (New York Common Pleas, General Term,

      Filed January 7, 1895.)

    Pleadings—Counterclaim—Summary proceedings.
    A claim by a tenant against a landlord for the conversion of gpods on-the demised premises cannot be pleaded as a counterclaim in a summary proceeding.
    Appeal from a judgment in favor of plaintiff.

      George W. Glaze, for app’lts ; George W. Stevens, for resp’t.
   Bischoff, J.

In a summary proceeding for the possession -of leased premises the tenants (defendants) set up a counterclaim for damages sustained by reason of the plaintiff’s having unlawfully retained and withheld certain furniture and food stuffs belonging to the defendants, and found upon the demised premises; the latter property being claimed to have been rendered valueless by reason of its perishable character. This counterclaim was dismissed at the trial upon the plaintiff’s motion, and, although the apellants’ counsel took no exception to the ruling, it is urged that error is in some manner presented. Waiving the point that an exception should have been taken, the ruling is found to be clearly right. Section 2244 of the Code of Civil Procedure (Amended Laws 1893, c. 705) permits the interposition of a counterclaim in summary proceedings, but it is thereby provided that “such, counterclaims may be set up and established in like manner as though the claim for rent in such proceeding was the subject of an action.” It is not to be gathered from this section that a counterclaim of every conceivable variety may be set up in these proceedings, in view of the latter provision, which clearly appears to be explanatory of its scope. The counterclaim here interposed was set forth strictly as a claim for damages by reason of a conversion of the chattels, and, viewing the proceeding as an action of which the claim for rent was the subject, such counterclaim was properly dismissed. McKensie v. Farrell, 4 Bosw. 192-202 ; Drake v. Cockroft, 4 E. D. Smith, 34; Romaine v. Brewster, 62 St. Rep. 517 ; 30 N. Y. Supp. 948; Finkelmeier v. Bates, 48 N. Y. Supr. Ct. 433, 441; Mayor, etc., v. Parker Vein Steamship Co., 12 Abb. Pr. 300, 303.

It is further claimed that a judgment of dispossession for the plaintiff was improperly rendered upon the defendants’ refusal to proceed, the appellants’ contention being that possession by them of the premises had not been shown. In answer it suffices to say that the verified petition filed by the landlord alleged the fact of possession by the tenants, as required by the statute (Code, §§ 2231, 2235); and by reason of the defendants’ withdrawal from the proceedings, and their refusal to proceed upon the trial of what issues might be raised by the answer, this allegation stood as sufficient to support the judgment. Moreover, it was admitted at the trial that the effects of the tenants were still upon the premises at that time. The final order is affirmed, with costs.


author: Bookstaver, J.

text:
    Edmund S. Whitman et al., App’lts, v. Edwin L. Johnson Resp’t.

      (New York Common Pleas, General Term,

      Filed January 7, 1895.)

    1. Service and proof—Order.
    The judge’s signature need not, on the service of an order granting a stay, be exhibited to the person on whom the service is made.
    2. Motion and order—Hearing—Contempt.
    It is not an error to hear a motion, though the moving party has been guilty of a technical contempt.
    Appeal from an order, denying the plaintiff’s motion to set aside the service .of defendant’s notice of entry of judgment, and from an order resettling an order, granting a stay.

      Osgood Smith, for app’lts; B. L. Fairchild, for resp’t.
   Bookstaver, J.

As many of the facts are common to both appeals, they may conveniently be considered together. Upon the trial of the action, April 9, 1894, a verdict was rendered for the defendant. Plaintiffs moved for a stay, and contended upon their appeal that the learned judge granted them “sixty days in which to make a case on appeal, and that all proceedings on the part of defendant herein, after the entry of judgment, be, and the same are hereby, stayed meanwhile.” Defendant entered the judgment, and served a notice of the entry thereof upon plaintiff’s attorneys on the 12th day of April, 1894. On May 29th, following, plaintiffs served a notice of appeal, which, was returned by the defendant on the ground that it was too late. On June 1st, plaintiffs entered an order signed by Judge Pryor, who tried the case, dated April 9 th, granting a stay in the terms above set forth, and reserved tlieir notice of appeal, which was again returned on the ground before stated. On the next day, June 2d, they obtained from Judge Bischoff an order requiring defendant to show cause why service of the notice of entry of judgment should not be set aside, and meanwhile staying proceedings. On June 4th, defendant obtained from Judge Pryor an order requiring plaintiffs to show cause why the order entered June 1st should not be resettled. This order, immediately upon its receipt by plaintiffs, was returned, with a notice upon it stating that it was returned because it was in violation of the stay of proceedings granted by the order of June 2d, which was served upon defendant’s attorneys on June 4th. Thereafter, and on the same day, defendant’s attorneys served upon the plaintiffs’ attorneys another copy of their order to show cause, with a notice that they had procured from Judge Bischoff a modification of the stay granted by the order of June 2d, as follows: “Modified to the extent of allowing motion for resettlement by Judge Pryor of his order upon which this order is based. June 4th, ’94. H. B., Jr., J. 0. 0. P.” This order was again returned to defendant’s attorneys, with the notice endorsed that it was in violation of the stay directed by the order of June 2d, that it was granted prior to the modification of the order of June 2d, and that the modification was not properly served, in that the judge’s signature thereto was not exhibited at the time of such service. The motion for a resettlement of the order of June 1st was, by direction of Judge Pryor, the trial judge, with the consent of counsel for both parties, referred and submitted to Judge Bischoff, and these appeals are from the orders entered upon his decision of both motions.

Whether or not the plaintiffs were entitled to a stay of all proceedings after the entry of judgment, or merely of a stay of execution allowing the service of notice of entry of judgment, was a question of fact to be determined on the evidence presented to the judge, and this could as well be determined by the judge who decided it as by the judge who tried "the case. Moreover, the motion was heard on "consent of both parties, and therefore no question can be raised on that ground.

We think the evidence in favor of the disposition made of the matter by the judge at special term overwhelmingly supports his decision. The affidavits of the attorneys for the parties are conflicting. The affidavit of the stenographer does not support appellants’ contention, for he swears he “has examined the transcript of his stenographer’s minutes relating to the motion for a stay, and finds he entered the motion, but did not enter the order of the-judge granted thereon.” So that what was actually granted in no wise appears from either his minutes or affidavit. The only other evidence on the subject is the extract from the clerk’s minutes, which reads as follows: “60 days’ stay of execution after notice of entry of judgment.” And this we think conclusive of the terms of the order made at trial term. There was nothing in the case which would warrant the extraordinary relief of extending the time to appeal. The clerk’s minutes are in accordance with the almost universal practice of the court, and the order denying plaintiff’s motion to set aside the service of notice of entry •of judgment must therefore be affirmed, with costs.

As to the resettlement of the order of April 9th, entered June 1, 1894, it is merely made to conform to the order denying the motion to set aside the notice of entry of judgment. Bnt it is contended that this motion was made while defendant was under a .stay of all proceedings by reason of Judge Bischoff’s order, and hence was in contempt of court at the time of making it, and should not have been heard. Judge Bischoff, however, had modified his order of J une 1st so as to allow a motion for the resettlement of Judge Pryob’s order; and the right of a judge to vacate ••or modify his own order without notice is elementary, and is confirmed by § 772 of the Code of Civil Procedure.

It is further contended that the service of a copy of the modi.fication of the order of Judge Bischoff was irregular and invalid, in that Judge Pryor did not resign his order after the modification of his order made by Judge Bischoff, and also on the ground that the judge’s signature was not shown to the plaintiffs’ attorney when it was served. Itis not necessary to exhibit the judge’s signature on serving such an order. Gross v. Clark, 1 Civ. Proc. R. 17, and cases cited. The resigning of Judge Pryor's order by that judge, even if necessary, was cured by the subsequent consent that this motion should be heard by Judge Bischoff. But, even if the defendant were in technical contempt of court, the court has at all times the right to forgive or overlook such contempt, provided that neither of the parties to the proceeding are inj ured thereby. People ex rel. Baldwin v. Miller, 9 Misc. Rep. 1; 59 St. Rep. 702. And in this case it is clear that neither party had acquired any right under the order, or had acted thereon to Bis detriment. This order must, therefore, also be affirmed, with costs.

All concur.


author: Daly, C. J. Bischoff, J.

text:
    William Roe, Resp’t, v. Thomas F. Crimmins, App’lt.

      (New York Common Pleas, General Term,

      Filed January 7, 1895.)

    Negligence—Contributory.
    A person, who has placed himself, in the midst of a large crowd, near an unguarded trench in the street, into which he is pushed by the surging of such crowd, is guilty of contributory negligence.
    Appeal from a judgment of the city court, affirming a judgment entered on a verdict in favor of plaintiff.

      Thomas S. Moore, for app’lt; Edgar J. Nathan, for resp’t.
   Daly, C. J.

The principle of law firmly established in this •state, and recently stated by this court, that “ one who knows of a danger from the negligence of another, and understands and appreciates the risk therefrom, and voluntarily exposes himself to it, is precluded from recovering for an injury which results from the-exposure.” (Robinson v. Man. Railway Co., 5 Misc. Rep. 209 ; 54 St. Rep. 792), seems to be particularly applicable to the case of this plaintiff. On the night of November 8, 1892, he went toParle Row, to look at the election returns displayed at the newspaper offices, and took up a position in the middle of the street, within two feet of an open, unguarded trench, along with á constantly increasing crowd o£ persons, ultimately numbering many thousands. He stood between the trench and a car track, and,, when a car approached, the crowd surged or rushed to get out of the way. After he had stood on the spot about an hour and a. half, the crowd, in one of its rushes, pushed him into the trench, and he thereby sustained the injuries for which he sued.

There is no question that the plaintiff voluntarily exposed himself to an obvious risk. He saw the trench as soon as he reached it. It was dug for the purpose of laying the cable of the Third Avenue Street Railroad, and was eight feet wide, six feet deep, and running for some distance up and down the street, and was, according to his testimony, unprotected and unguarded at the point where he stood, although 20 feet away there was a fence to it. He chose the' position he occupied in order to see-the bulletins of both The World and The Sun newspapers. When he first arrived at. the spot, “ there was not much of a crowd and “ the crowd commenced to come, so that there might have been fifteen or twenty thousand persons. The whole of Park Row was full of people cheering and crowding.” The plaintiff remained with this excited crowd about him, which was surging and rushing to get out of the-way every time a car passed, and he knew that, if the crowd pushed his way, he must be precipitated into the trench beside-which he stood, with no power, as he admits, to protect himself except to catch hold of some one, which he tried to do, but missed, at the time he sustained his injury.

We look in vain for any evidence of care on plaintiff’s part to-guard against the danger to which he knew he was exposed, “ It is a fundamental principle in the law of this state that in a traction for a personal injury, based upon the negligence of the defendant, the absence of negligence on the part of the plaintiff contributing to the injury must be affirmatively shown bv the plaintiff, either by direct proof or by circumstances." Weston v. City of Troy, 139 N. Y. 281; 54 St. Rep. 493. In the case last cited, the court of last resort felt bound to set aside a recovery against the city of Troy for damages sustained by the plaintiff in slipping upon the ice in the public street. The court held that the negligence of the city was made out, but that the judgment could not be affirmed without making a precedent for overturning the rule above quoted; that, if the plaintiff discovered the ridge of' ice, she might, by using due care, have kept on her way, but could not heedlessly disregard the precaution which the obvious situation suggested, and proceed as though the sidewalk was free and unobstructed. While there. might have been little or no-danger when plaintiff took up his position near the trench, owing to the smallness of the crowd which had then gathered, the-peril increased as the crowd increased, and its irresistible motion became inevitable; and yet he remained there an hour, next to-the open excavation, and his continuance in the place of danger was an absence of all care, which must defeat his recovery, for the risk was voluntarily assumed. No precaution was taken for self-protection, and there was a complete failure to establish an essential of his action, viz. the absence of contributory negligence.

The judgment should be reversed, and a new trial ordered, with costs to appellant of the appeal and the former trial, to abide the event of the action.

Pryor, J., concurs.

Bischoff, J.

(dissenting).—In this action the plaintiff claimed and recovered damages for injuries sustained by reason of his having fallen into an excavation in a public street, the excavation having been made by the defendant, and alleged to have been negligently maintained, in that no barricades surrounded it at the point where the accident occurred.. No claim is made that the facts in evidence, assuming that there was a question for the jury, failed to justify a recovery against the defendant, or to support, the verdict rendered, the appellant relying upon the exception taken to the denial of the motion for a dismissal of the complaint, upon the ground that contributory negligence had been established as a matter of law. The facts essential to this question were that the plaintiff’s fall into the excavation had been caused by the-pressure against him of a large crowd of persons ; that, prior to-the accident, he knew of the existence of the excavation, and of its unprotected condition, and voluntarily maintained a position, two feet distant from its edge. It appeared that there was but a small assemblage of persons about him at the time he took the position noted, but that their number greatly increased thereafter; and owing to a certain condition of traffic in the street, this crowd surged continually, but, until the movement which caused the accident occurred, the plaintiff had not been impelled towards the open trench at any time. Under these circumstahcés, I think that-the question of the plaintiff’s contributory negligence was properly submitted to the jury, since from the facts a sufficiently reasonable inference could be drawn that such care as the situation called for was exercised by him. In order to authorize á determination by the court of the issue of negligence, the facts shown must lead to-but one conclusion, and with no conflict as to the inferences which may be drawn therefrom, 16 Am. & Eng. Enc. Law, p. 465 et seq., and cases cited ; Cochran v. Dinsmore, 49 N. Y. 253 ; Weiler v. Man. Railroad Co., 53 Hun, 372, 376; 25 St. Rep. 543; Harris v. Perry, 89 N. Y. 308, 312; Atkinson v. Abraham, 45 Hun, 238; 10 St. Rep. 342 ; and to my mind the facts in this case fail to lead irresistibly to the conclusion contended for.

The point might perhaps be raised that the plaintiff, in becoming one of a crowd of persons whose presence unlawfully obstruced the street, could not be heard to complain of any injury result-while he was in the thus and that the exception to the denial of the motion to dismiss the complaint should present error in this aspect. The rule with regard to the effect of a violation of a general law or special ordinance by an individual upon his recovery for injuries sustained by reason of another’s negligence, where such violation is in some manner associated with the fact of the injury,but is independent of a duty owing to the party complained of, may be stated to be that, if he founds his action upon his breach of law, he cannot succeed, and, if the unlawful act is a proximate cause of the injury, then it is to be viewed as contributory negligence, and the action would necessarily fail. Plate v. City of Cohoes, 89 N. Y. 219 : Steele v. Burkhardt, 104 Mass. 59 ; Norris v. Litchfield, 69 Am. Dec. 549 ; Johnson v. Patterson, 35 Am. Dec. 96 ; Kerwhacker v. Railroad Co., 62 Am. Dec. 246; Daly v. Railroad Co., 26 Conn. 591; Marble v. Ross, 124 Mass. 44; Birge v. Gardner, 50 Am. Dec. 261. The case of Tonawanda Railroad Co. v. Munger, 5 Denio, 266, 267 ; 4 N. Y. 349, and similar cases dealing with the effect of the trespass by cattle upon the tracks of a railroad, are readily distinguishable from the cases above cited, for there the trespass was properly taken as the immediate cause of the injury, and the owner’s act in permitting the animals to wander to be contributory negligence. The court in Norris v. Litchfield, supra, failed to note the distinction, and disapproved of the rule thought to have been laid down in such cases ; but the general proposition enunciated in that case was approved by the court of appeals in Plate v. City of Cohoes, supra.

It cannot be said that in the case at bar the plaintiff’s act in becoming one of the crowd which obstructed the street was, as a matter of law, a proximate cause of his injury. It was not to be .assumed that this act would reasonably lead to his being precipitated into the excavation, and therefore the question of contributory negligence in this aspect, as in others, was for the jury. Nor was the action based upon the plaintiff’s breach of the law. He claimed through a violation of his rights when in the public street as an individual, not as one of the crowd ; the violation of such rights by the defendant’s negligence being the basis of the action, independent of the facts incidentally appearing with regard to the presence of the assemblage. In principle the case is analogous to Steele v. Burkhardt, 104 Mass. 59.

Error is further assigned to the refusal of the trial judge to ■charge that, “if the jury find that the plaintiff willfully swore falsely upon any material point, they should disregard his entire testimony;” an exception having been taken to the court’s modification of the request as follows: “With this modification that you have the right, it is your province, and you may disregard the whole of the testimony, or any part thereof." While there has been some conflict of authority with regard to the question whether the jury should be instructed to disregard the testimony of a witness whom they find to have sworn falsely, or whether they should be permitted to consider his testimony, if it should seem best to them, in connection with the other evidence presented, leaving the final ■determination as to the weight of the evidence in support of the judgment to the tribunal whose province it is to thus review the case, the latter rule appears to accord with better reason, Lee v. Chadsey, 2 Keyes, 545; Dunn v. People, 29 N. Y. 529; Peering v. Metcalf, 74 N. Y. 507; and the question has so been conclusively settled by the court of last resort in People v. O'Neil, 109 N. Y. 266 ; 14 St. Rep. 829, where the doctrine of Dunn v. People, supra, was fully confirmed.

The final point made is that the court erred in excluding testimony whereby the condition of the trench upon the morning after the accident was sought to be shown, and the appellant relies upon the case of Peil v. Reinhart, 127 N. Y. 385; 38 St. Rep. 913. It was there held, in a case where the condition of a stair carpet in that portion of a tenement house which was used by the tenants as a passage in common was in issue, that “there was no error in the reception of the evidence of the condition of the stair carpet the morning following the injury, as, without proof to the contrary, it was reasonable to assume that its then condition was substantially the same as at the time in question.” If it be conceded that the sound condition of railings placed around a trench in a public street could be established by proof of their subsequent appearance, and this with the degree of reasonableness which would be found in the attempt to establish the ragged and worn-out condition of a stair carpet in a tenement house by proof of its condition the morning following the particular time in question, the authority cited would necessarily be conclusive in support of the point raised. But many points of distinction are to be found between the two cases, and, moreover, the question whether the condition of a locality, or of any article, at a certain time, may be proven by evidence of its condition at a time subsequent, is necessarily to be determined with regard to the value of the proof offered, -considered in the light of the other facts in the case. So a ruling of the court in any case in this regard upon a particular state of facts where all of the facts do not appear, as in Peil v. Reinhart, supra, cannot be taken as applicable to every other case where such proof is‘offered. Thus, in People v. Buddensieck, 103 N. Y. 500; proof as to the subsequent condition of a fallen building was received where the other evidence provided proper foundation for its reception. Similarly, in Ruloff v. People, 45 N. Y. 224, it was held that the facts justified the admission in evidence of a photograph of a corpse, for purposes of identification. And in Stodder N. Y., L. E. & W. Railroad Co., 50 Hun 221, 226; 19 St. Rep. 722, there being proof as to a certain unchanged condition of a railway switch, the court held that such unchanged condition could properly be shown as existing after the accident which was the subject of that action. But in Village of Port Jervis v. First Nat. Bank, 96 N. Y. 560, a case similar to that at bar, it was held that evidence of the condition of railings around an excavation at ,a time one day later than the day of an accident was not to be received as proof of their condition at the time of such accident; and, in the absence of a proper foundation for the proof offered in this case, we hold this last-cited authority to avail in support of Ihe ruling made below.

The exceptions thus failing to present error, the judgment should be affirmed, with costs.


text:
    Equitable Gaslight Company, App’lt, v. Sarah H. French, Resp’t.

      (New York Common Pleas, General Term,

      Filed January 7, 1895.)

    1. District court—Jury.
    The failure of a party, in a district court, to tender the fees within the time specified hy § 1377, chap. 410 of 1882, does not render it improper for the justice to allow a jury trial, over the objection of the adverse party.
    2. Same.
    The justice, in the absence of a demand, may, in his discretion, direct a jury trial.
    Appeal from a judgment in favor of defendant.

      Joseph J. Myers, for app'lt; Abram Kling, for resp’t.
   Bischoff, J.

This is an appeal from a judgment rendered in favor of the defendant for dismissal of the complaint upon refusal of the plaintiff to proceed with the action when called for trial before a jury in the court below, the ground of such refusal being that the defendant had failed to comply with section 1377 of the consolidation act (Laws 1882, c. 410), whereby it is provided that, “before a party can be entitled to a jury, he must deposit with the clerk at the time he demands a trial by jury, the sum of three dollars, and the officer’s fees for summoning the jury,” etc. Upon the return, day of the summons the defendant had demanded a j ury trial in open court, the plaintiff being present and apprised of such demand and upon the same day the jury fees were tendered by the defendant to the assistant clerk of the court. Through some misapprehension of the law, this clerk declined to receive the fees, and directed the defendant to pay the same within five days before the trial, at or about which time tender was accordingly made to the clerk of the court, and was refused, as having been made too late. Upon the matter being submitted to the justice, he' directed that the sum should be received, and a venire issue. At the trial the plaintiff refused to proceed before the jury, claiming that the defendant’s right thereto had been waived by reason of her noncompliance with the statute, and that the justice had exceeded his powers in thus summoning the jury.

It is clear that the appellant was in no way injured by the justice’s according this benefit to the defendant in disregard of her failure to comply strictly with the statute in the respect considered, for no claim is made, nor well can be, that proper notice of the defendant’s demand for a jury trial was not given. Upon general principles, therefore, this ruling by the justice would be insufficient as the basis of an appeal (Ripley v. Jaussen, 9 Misc. Rep. 474), but it is claimed, and quite justly, that proceedings in. these inferior courts must conform to the statute, and that -its violation renders a resulting judgment erroneous. Schwartz v. Wechler, 20 N. Y. Supp. 861; Becker v. Sitterly, 58 How. Pr. 41. Thus it has been held that a party who has demanded a jury trial in one of these courts has the right to insist that the jury shall be drawn as prescribed by statute, and this despite the fact that no prejudice could have resulted from the particular irregularity. Brisbane v. Macomber, 56 Barb. 376. Also that a party must comply with the statute requiring the payment of jury fees, in order that he may insist upon his right to a trial by jury. Kilpatrick v. Carr, 3 Abb. Pr. 117. But, whatever bearing such anthorities might be said to have upon this case by possible analogy, is not of importance, since, by section 1372 of the consolidation act (amended by chapter 378 of the Laws of 1891), it is provided that, in the absence of a demand by the parties, the justice may, in his discretion, direct that trial be had before a jury in any case, the only requirement as to payment of fees being that it shall be then made before rendition of judgment upon the verdict. Therefore, giving to the defendant’s failure to comply with section 1377 all of the effect contended for, the parties were but in the same situation as if no demand for a jury trial had been made, and the direction complained of is to be supported as an exercise of that discretion which in this case the justice possessed under the statute, and which in no way appears to have been abused. The judgment is affirmed, with costs.


text:
    Katharine Jennings, Resp’t, v. Henry H. Miller, Impleaded, etc., App’lt.

      (New York Common Pleas, General Term,

      Filed January 7, 1895.)

    1. Appeal—Error nr fact—Distbict coubt.
    The provisions of § 3057 of the Code apply to the district courts of the city of New York.
    23. Same—Known to justice.
    Where the justice is cognizant of the fact whether or not the appellant appeared and litigated the question at issue, the assignment, as error in fact, of an unauthorized appearance for him does not bring the case within the provisions of such section.
    Appeal from a judgment in favor of plaintiff, rendered without a jury.

      John Naumer, for app’lt; George C. Coffin, for resp’t.
   Bischoff, J.

This appeal is founded upon an alleged “ error of fact, not affecting the merits and not within the knowledge of the justice below ” (Code Civ. Proc. § 3057), such error being assigned to the unauthorized entry of an appearance for the defendant (appellant), it not appearing from the record that he was personally served with the summons, nor is claim made that he was. While it was held in Jourdan v. Healey, 46 St. Rep. 198; 19 N. Y. Supp. 240, that section 3057 was not applicable to appeals from the district courts, the statement there made was obviously due to an oversight; and, moreover, the point was not essential to the determination of that case. By section 3213 of the Code, and section 1438 of the consolidation act (Laws 1882, c. 410), articles 1 and 2 of title 8 of chapter 19 of the Code are made applicable to the district courts, and section 3057 is included in article 1 of such title and chapter.

For the respondent, it is claimed that this court has not jurisdiction to entertain the appeal, it being conceded that the notice of appeal was not served within 20 days after entry of judgment. Code, § 3046, made applicable by section 3213, Code Civ. Proc., and section 1438, Consolidation Act. The last-cited section reads as follows: “An appeal must be taken within twenty days after the'entry of judgment in the justice’s docket, except that where a defendant appeals from a judgment rendered in an action, wherein he did not appear and the summons was not personally served upon him, the appeal may be taken within twenty days after personal service upon him on the part of the plaintiff,' of written notice of the.entry of judgment; but not after the expiration of five years from the entry of the judgment,” etc.

In answer, the appellant contends that he had not appeared in the action, and that, therefore, his appeal was properly taken within five years after entry of judgment, no service of notice of its entry having been made. From the return it appears, and is not denied, that the appellant was physically present in court upon the trial of this cause that he was examined as a witness “ for the defendants,” there being but one defendant other than himself, and was cognizant of the matters in suit. How, then, is the judgment to be assailed for “ error of fact not within the knowledge of the justice?” Who, better than the justice presiding, should be cognizant of the fact whether or not this defendant appeared and litigated the question at issue, as, from the record, it would appear that he did ? The return might, perhaps, have, been open to amendment, but, as it exists, it is not to be attacked by affidavits under section 3057; and, the judgment standing as establishing the fact of the appellant’s appearance, the appeal was not seasonably instituted (Code, § 3046), and must be dismissed, with costs.


text:
    John Thomas et al., Resp'ts, v. Societa Italiana di Mutuo Soccorso, App’lt.

      (New York Common Pleas, General Term,

      Filed January 7, 1895.)

    1. Evidence—Parol.
    The opinions of officers of an association cannot he given for the purpose of construing technical, ambiguous or uncertain terms of a bylaw, where it is susceptible of definite construction without extraneous proof.
    S. Mutual aid association—By-law—Construction.
    The provision in the by-laws of defendant’s society in regard to funerals was held to require the society to pay the expenses, and not to mean merely that the members of the society should be ’called on to attend a member’s funeral.
    Appeal from a judgment in favor of plaintiffs, rendered by the justice without a jury.

      J. S. Galland, for pl’ff; Joel M. Marx, for resp’t.
   Bischoff, J.

The plaintiffs, as personal representatives of one Di Miceli, a deceased member of the defendant society, sued for and recovered the sum of $49.90, by them expended for the funeral expenses of the decedent, it being claimed that by the terms of the defendant’s by-laws it had agreed to provide a funeral for such deceased member, and which, upon demand, it had refused to do. The sole question litigated upon the trial, and now presented, relates to the construction of the by-laws with regard to the defendant’s undertaking to defray the expenses of a, funeral for a deceased member in good standing, which this decedent was admitted to be. According to • the terms of these bylaws, the aim of the society was “ mutual aid, protection, and moral and material support among its members. * * * To this end the society grants to each member (1) financial relief in case of sickness; (2) legal protection in case of wrongs; (3) relief in case of death of legitimate wife; (4) funeral in case of the' event of death.” It is claimed by the appellant that the provision for a funeral intended merely that the members of the society should be called upon to attend the deceased member’s burial, and-that the society could be in no way called upon to defray the expenses of such funeral. This contention cannot prevail. The natural and accepted meaning of the phrase noted, and the sense in which only it. could have reasonably been understood by the member (Nibl. Mut. Ben. Soc. § 15), would intend a promise to pay the expenses of his decent burial. The terms of the other by-laws and of a certain receipt in evidence, admit only of an interpretation that the “funeral” to be provided involved a pecuniary benefit to the member’s estate. Provision is made for a “ tax for funerals,” and the funeral is classed among the other substantial benefits to be derived from membership, and which, in case of certain defaults in payment of assessments, should be withheld. The fact that the by-laws also provide that notice be given to the members of the society upon the death of one of their number, in order that their attendance should be secured at the funeral of the deceased member, in no way presents any inconsistency with the other provisions noted. The terms of the agreements are clear, and no construction that the party accepting them ’ as consideration for the payments required, did so merely with the expectation of finally securing an impressive escort to possibly a pauper’s grave could reasonably obtain. While in some cases the opinion of officers of an association may be given for the purpose of construing technical, ambiguous or uncertain terms of a by-law, the evidence offered in that regard in the present case.was properly excluded, the by-laws being susceptible of definite construction without extraneous proof. Brendon v. Worley, 8 Misc. Rep. 253 ; 59 St. Rep. 237.


author: McAdam, J.

text:
    William W. Clendenning, Resp't, v. Richard Lindner, App’lt.

      (New York Superior Court, Special Term,

      Filed January, 1895.)

    Appeal—Court of appeals.
    The trial term cannot, on an appeal to the court of appeals from the general term, amend the case used before the latter court, without its consent.

      Motion to resettle the case before an appeal to the court of appeals.

      A. L. Pincoffs, for pl’ff; Kelly & MacRae, for def’t.
   McAdam, J.

The case herein was settled, printed, and argued at the general term, where the judgment appealed from, was affirmed. The defendant proposes to appeal to the court of appeals, and desires the trial judge to amend the case on appeal, by striking out certain matter therein contained and inserting other matter in its place. This .cannot be done. The court of appeals can review the action of the general term only on the case the general term had before it. Catlin v. Cole, 19 How. Pr. 82 ; Fitch v. Livingston, 7 How. Pr. 410 ; Fish v. Wood, 2 Abb. Pr. 419 ; Porter v. Parks, 2 Hun, 675. The case in the court of appeals must be the same as that in the court below. Johnson v. Whitlock, 13 N. Y. 344 ; Westcott v. Thompson, 16 N. Y. 613 ; Smith v. Grant, 17 How. Pr. 381; Catlin v. Cole, 10 Abb. Pr. 387. The court of appeals may, no doubt, remit the case to the general term for resettlement ( Westcott v. Thompson, supra ; Jaycox v. Cameron, 49 N. Y. at page 649), and the general term may in turn remit it to the trial judge or referee ( Witbeck v. Waine, 8 How. Pr. 433). In Hobart v. Hobart, 85 N. Y. 637, the court held that an appeal from a decision of the general term can only bring up certified copies of the papers on which the court below acted in making the order (citing rule 1, court of appeals), and an order was made requiring the appellant to conform the case to that which the general term had heard. From this it is apparent that the trial judge cannot, without leave of the general term first had, make any correction of the case before it; for by so doing he might unconsciously make it appear to the court of appeals that the general term had committed an error in disposing of the appeal, when there was none whatever upon the record before it. For these reasons the application for an order to show cause why the case should not be corrected, in respect to matters which the appellant prior to and at the argument before the general term thought of no moment, but now regards as material, must be denied.


author: Gildersleeve, J.

text:
    Frank Krzywosynski, by Guardian, etc., Resp’t, v. Consolidated Gas Company of New York, App’lt.

      (New York Superior Court, General Term,

      Filed January 7, 1895.)

    Negligence—Proof.
    In an action against a gas company' for injuries caused by an explosion of gas, the evidence was held insufficient to establish negligence on the part of the defendant.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Lord, Day & Lord, for app’lt; Eugene I. Yuells, for appellee.
   Gildersleeve, J.

The jury in this case rendered a verdict for the plaintiff, and assessed the damages at $1,000. The plaintiff sustained the injuries which this award was intended to compensate by an explosion of gas, supplied by defendant corporatian to the premises where the accident occurred. No contributory negligence by the plaintiff was urged, and the liability of the •defendant, if any, rested updn its alleged negligence. The serious question presented for review arises upon the defendant’s exception to the refusal of the trial judge to dismiss the complaint at the close of plaintiff's case, upon the ground that there was no evidence connecting the defendant with the accident; and also upon the exception taken at the close of the evidence to the denial of the motion that a verdict be directed for the defendant. Was the defendant’s negligence established by a fair preponderance of proof ? If we look at the evidence in a light most favorable to the plaintiff, can it be said that a prima fade case is made out? It is established by the evidence that on the 18th day of May, 1892, at about 5 o’clock in the afternoon, the gas was found to be leaking in the cellar of the premises No. 172 Eldridge street, in this city; that the plaintiff, with another boy, was lawfully standing upon the cellar door in front of the premises in question ; that the housekeeper of the premises was notified of the smell of gas, and she at once called the attention of one of defendant’s employes to the fact; that this employe, one Oonlin, forthwith went into the cellar for the purpose of ascertaining the whereabouts of the leak, or the cause thereof, and that the explosion occurred almost immediately upon Conlin’s entering the cellar; that the plaintiff was thrown by the explosion, and sustained thereby the injuries in question. It cannot be said that Oonlin was guilty of negligence in going into the cellar. He took no light with him, and nothing was done by him that can be assigned as the cause of the explosion; nor does it appear that he omitted to do anything which, if done, would have prevented the explosion. There is nothing in the testimony to indicate the cause of the leak, nor its exact location. Gas was escaping, and it is reasonable to suppose that, had a sufficient time elapsed between Conlin’s entry into the cellar and the explosion to enable him to make a careful examination, he would have discovered the locality and nature of the leak. The cause of the accident does not appear. The jury, therefore, were not entitled to infer that it was due to any negligence on Oonlin’s part. By conjecture and presumption the cause of the accident could be attributed to any one of several causes with quite as much certainty as to the negligence of the defendant. There is no evidence whatever of any defective workmanship on the part of the defendant, nor is .there any evidence of defendant’s failure to make repairs, upon which a liability can be predicted. The defendant entered diligently .upon the work of ascertaining the cause of the leak, and the explosion occurred before the discovery of the cause could be learned. We are forced to the conclusion, therefore, that the testimony does not warrant the finding either that defendant was responsible for the leak or for the explosion. The testimony fails to establish the defendant’s negligence, and the verdict, therefore, is not supported by the evidence. The judgment should be reversed, and a new trial ordered,' with costs to appellant to abide the event.