text:
    ACKSAH GUNN, Respondent, v. ADELBERT FELLOWS, Appellant, and Eight Other Cases by the Same Respondent Against Different Respective Appellants.

      Pleadings — separate causes of action must be separately stated and numbered— Code of Civil Procedure, sec. 483.
    The complaint in this action alleged, among other things, “ that the defendant and divers other persons, at the town of Tully, said county, on or about the 30th day of September, 1885, in the night-time and after the said plaintiff had retired, and while she was in bed, did wrongfully, willfully, maliciously, feloniously, burglariously, riotously and notoriously break and enter the dwelling-house and premises, then occupied by the said plaintiff as a dwelling, in said town of Tully, and did then and there injure, break and destroy the said building and property and furniture in and about said dwelling, and did make loud and boisterous noises, and did then and there threaten, insult, assault, beat, wound, terrify, frighten and injure this plaintiff in mind, person and health, so that she became frightened, s.ick, feeble and sore, and so remained for a long space of time, whereby she has sustained damages in the sum of $5,000.
    A motion to require the plaintiff to serve an amended complaint setting forth, in one count, the facts constituting her cause of action for trespass to real and personal property, and in another count ,the facts constituting her cause of action for assault and battery was denied, upon the ground that but one cause of action, namely, trespass, was alleged in the complaint.

      Held, error:
    That the first part of the complaint stated a cause of action for breaking and entering the plaintiff’s dwelling-house and injuring the building and property and furniture. That the other portion stated a cause of action for assault and battery to and upon the person of the plaintiff.
    That each of said separate causes of action should have been separately stated and numbered. •
    Appeal from an order of tho Onondaga Special Term, made in January, 1886, denying a motion “ that the plaintiff be required to serve an amended complaint in this action, wherein the plaintiff shall set forth separately in one count and' -number the same, the statement of facts which constitute the cause of action against the defendant for trespass to the real and personal property of plaintiff, and wherein she shall set forth separately in another count and number the same, the facts which constitute her cause of action for assault and battery against the defendant herein, pursuant to the provisions of section 483 of the Code of Civil Procedure, and for such other and further relief as to the court shall seem equitable, together with costs.”
    The order shows the ground upon which the motion was denied, to wit: “ That the motion be and the same is hereby denied upon the ground that but one cause of action, namely, trespass, is alleged in the complaint.”
    The complaint is in the following language, viz.: “ That the defendant and divers other persons, at the town of Tully, said county, on or about the 30th day of September, 1885, in the nighttime, and after the said plaintiff had retired, and while she was in bed, did wrongfully, willfully, maliciously, feloniously, burglariously, riotously and notoriously break and enter the dwelling-house and premises, then occupied by the said plaintiff as a dwelling, in said town of Tully, and did then and there injure, break and destroy ¡the said building and property and furniture in and about said dwelling, and did make loud and boisterous noises, and did then •and there threaten, insult, assault, beat, wound, terrify, frighten and injure this plaintiff in mind, person and health, so that she became frightened, sick, feeble and sore, and so remained for a long space ,of time, whereby she has sustained damages in the sum of five thousand dollars.” An appropriate prayer followed the complaint.
    It appears by the affidavit that this action and the other eight grew out of a charivari in which the defendants were engaged •“ upon the marriage of Martha Gunn, the plaintiff’s daughter, to .one William Thompson.”
    In the moving affidavit it is alleged, viz.: a That the cause of action for assault and battery stated in the complaint, is alleged, as .deponent believes, with the intent that the pleadings may control .the judgment herein, giving plaintiff as much costs as damages, even though the proof upon the trial shall show a cause of action for trespass or injury to personal property only.” No opposing .affidavits were read upon the motion.

      Pierce <& Stone, for the appellants.
    jEl P. Moore and M. M. Waters, for the respondent.
   Hardin, P. J.:

Section 483 of the Code of Civil Procedure requires “ the statement of the facts constituting each cause of action ” to be “ separate and numbered,” when “ the complaint sets forth two or more causes of action.” The remedy for an omission to comply with the requirement of that section is by motion and not by demurrer. (Bass v. Comstock, 38 N. Y., 21; S. C,, 36 How., 382; Freer v. Denton, 61 N. Y., 496.) If causes of action are improperly united, the remedy is by demurrer, whether properly separated and numbered or not. (Goldberg v. Utley, 60 N. Y., 427.) The facts stated in the first branch of the complaint, under the former system of pleading, would have justified a classification of the action as one for trespass. That term, “ in its most extensive signification, includes every description of wrong.” (1 Chitty’s Pleadings, 166.) It was an action “for injuries committed with force.”

The same author says : “And the .plaintiff may, in a declaration in trespass, unite a count for tbe battery or seduction of his servant, per quod servitium amisit, with a count for battery of the plaintiff himself. * * * However, if .these injuries be joined with a count in trespass, then each should be stated to have been committed vi et armisP (1 Chitty’s Pleadings, 200.)

The same learned author, at page 398, volume 1, says: “ Thus, in trespass for breaking and entering a house, the plaintiff may, in aggravation of damages, give in ‘evidence the debauching of his-daughter, or the battery of his servants under the general allegation alia enormia, etc., and yet the matter may be stated specially; but he cannot under the alia enormia give in evidence the loss of service, or any other matter which would of itself bear an action, for if it would, it should be stated specially.” (1 Chitty’s Pleadings, 397; Handy v. Chatfield, 23 Wend., 35.)

In Richardson v. Northrup (66 Barb., 87) Mullin, J., says: “ The rules of pleading at common law required distinct causes of action of the same nature to be stated in separate counts. And the joinder in the same count of several distinct causes of action, was consequently fatal on demurrer.”

We think the requirement of section 483 of the Code of Civil Procedure that “the statement of the facts constituting each cause of action must be separate and numbered” was violated by the pleader who drew the com plaint now before us. The first part of the complaint states a cause of action for breaking and entering the plaintiff’s dwelling-house and injuring the building and property and furniture, which allegations make out a distinct and separate cause of action, and the statement in that regal’d should have been separated and numbered; and the other portion of the complaint contains a “ statement of the facts constituting ” another cause of action for assault and battery to and upon the person of the plaintiff, and such statement of facts ” should have been numbered and separated from the first cause of action.

We, therefore, differ from the Special Term and its order which denied the defendant’s motion on the “ ground that but one cause of action, namely, trespass, is alleged in the complaint.” (Code of Civil Pro., §§ 481, 483; Case v. Shepard, 2 Johns. Cases, 29; Benedict v. Seymour, 6 How., 298; Wiles v. Suydam, 64 N. Y., 175; Pomeroy’s Remedies and Rights, §§ 452, 462; Anderson v. Hill, 53 Barb., 238; Langdon v. Guy, 91 N. Y., 660; Fisher v. Conway, 21 Kan., 18; Durkee v. S. and W. R. R. Co., 4 How. Pr., 226; Gooding v. McAlister, 9 How., 123; Zimmerman v. Shreever, 27 Alb. Law Jour., 499.)

Our attention is called to Van Leuven v. Lyke (1 Comst., 517), which was an action for trespass for injury to plaintiff’s animals by defendant’s animals, and the damages were described in the complaint, and it was not alleged or proven that defendant had knowledge of the vicious propensities of his animals. It was held damages could not be recovered. It does not aid the respondent here.

'We have looked into the other cases cited by the respondent and do not find anything in conflict with the views already expressed. In case the plaintiff recovers less than fifty dollars for trespass, a different rule as to costs would be applicable than would prevail in an action where the recovery was for an assault and battery for less than fifty dollars. In case the causes of action are separately stated and numbered, confusion and difficulties in regard to the rule respecting costs may be avoided. (Code, §§ 3228, 3234.)

We think the order appealed from in this and the other eight cases should be reversed, with ten dollars costs and disbursements in one case, and the motion granted in all the cases, with ten dollars costs of motion in one case, plaintiff to serve amended complaints within ten days from the service of a copy of this order.

Boabdman and Follett, JJ., concurred.

Orders reversed, with ten dollars costs and disbursements in one case, and the motion granted in all the cases, with ten dollars costs of motion in one case, plaintiff to serve amended complaints within ten days from the service of orders.


source: Caselaw Access Project

author: Hardin, P. J.: Follett, J.:

license: Public Domain

text:
    STANDARD WAGON COMPANY, Respondent, v. HENRY E. NICHOLS, as Assignee of McCULLY & CO. and PERSIS McCULLY, Appellants, Impleaded with Others.

      A general assignee falces the fund subject to the equities existing in favor of. the creditors of the assignor — right of such a creditor to have a lien declared, to exist in his favor upon the fund in the hands of the assignee.

    In January, 1881, the firm of McCully '& Co. ordered of the plaintiff certain carriages, by a letter, agreeing to pay freight and hold the goods on commis sion, selling on the plaintiff’s account and remitting cash for the same promptly, and further agreeing to purchase all goods not sold on or before November fifteenth, giving the firm’s acceptance for the same at ninety days. In February, May and June certain property was consigned to the firm, the bills of the two last shipments stating that the consignments were to be paid for as sold, and goods on hand November 1, 1884, were to be paid for by cash.
    This action was brought by the plaintiff against the assignee, to whom the firm had made a general assignment on December 30, 1884, to recover a balance of $372.73 admitted to be due for goods shipped, after a demand had been made therefor in January, 1885. Upon the trial it was admitted that the money for all of the said goods so sold had been duly received by the firm and used in their business. It further appeared that on November tenth an agent of the plaintiff received from the firm a check for $218.97 for goods theretofore sold but not settled for, and the firm’s note, dated November 1, 1884, payable in three months for $153.76 for goods then on hand unsold.

      Held, that as the check was not paid it did not extinguish the original relation existing between the parties.
    That as the moneys arising from the sale of the goods, which were represented by the amount included in the check, were received for goods belonging to the plaintiff, which had been improperly mingled with the firm assets and retained by it down to the time of making the assignment, the assets received by the assignee were to the extent of- such moneys impressed with a trust in favor of the plaintiff, which justified a judgment in this action directing the payment of that amount in full by the assignee and declaring the judgment to be a first lien upon the said funds. (Follett, J., dissenting.)
    That the giving and acceptance of the note for the goods then unsold transferred the goods to the firm and the note to the plaintiff.
    The competency of evidence as to conversations relating to the consignment of the goods above mentioned, had between plaintiff’s agent and McCully & Co., prior to written order of January, 1884, considered, and such evidence held to be admissible.
    Appeal from a judgment, entered in Oswego county upon the report of a referee for $390.01 damages.
    Prior to 1884, and during that year, the defendants Persis McOully and Edward McCully were copartners in business, at Fulton county, under the firm style of McCully & Co. On the 30th day of .December, 1884, the firm of McCully & Co. made a general assignment of its property for the benefit of its creditors, to the defendant Henry E. Nichols, in trust, who accepted the assignment and qualified and took possession of the property of the firm and proceeded to convert it into money, and received as proceeds thereof something more than $1,500.
    In January, 1884, the firm of McCully & Co. ordered from the plaintiff certain carriages specified in a written order, which written order contained the following language, viz.: “We agree to pay freight and hold goods on consignment, storing safely free of all expense to you, and selling on your account, remitting cash for same at above prices promptly when sold. We further agree that if all above vehicles are not sold on or before November 15, 1884, we will purchase them or any of them remaining on hand at that time, giving our acceptance for same at ninety days from that date.”
    In February, 1884, certain other property, and in May and June some other articles of property were also consigned to McCully & Co. The May shipment was accompanied with a bill in which is the following language, viz.: “ Consigned to be paid for as sold, and goods on hand November 1, 1884, to be purchased by cash.” The consignment of June 9, 1884, was of one buckboard. The consignment of June 26, 1884, was one Standard wagon, and the bill accompanying the same contained the following language, viz.: “Consigned to be paid for when sold. If not sold by November 1, 1884, to be then purchased for cash.”

      It was admitted on the trial that the “ total amount of goods shipped by the plaintiff to McCully •& Co. amounted to the sum of five hundred and ninety-six dollars and fifty cents, and that there had been paid by McCully & Co. to the plaintiff to apply thereon the sum of two hundred and twenty-three dollars and seventy-seven cents, leaving a balance of three hundred and seventy-two dollars and seventy-three cents.”
    It was admitted that “of the said goods unpaid for two hundred and eighteen dollars and ninety-seven cents were sold by McCully & Co. prior to November 10, 1884;” also, “ that the money for all of the said goods was duly received by McCully & Co. and was used in their business; ” also, “ that McCully & Co. are now indebted to the plaintiff in the sum demanded in the complaint, viz.: Three hundred and seventy-two dollars and seventy-three cents and interest from November 10, 1884.” It was also admitted that “in Jauuary, 1885, the plaintiff demanded their goods or the money received for the same of each and all of the defendants, and that they and each of them refused to pay the same, and that the plaintiff at the time it made such demand tendered to the defendant all checks and notes then held by it, received from McCully & Co.”
    The referee ordered judgment for the plaintiff for $372.73, and interest from the 10th day of November, 1884, against the defendants, “ such judgment to be paid in full by the said Henry E. Nichols, as assignee, out of the fund now in his hands as such assignee, derived by him out of and under the assignment of the estate of the said defendants Persis and Edward McCully (McCully & Co.), and said judgment is hereby declared to be a first lien upon said funds and payable in full thereof.”

      H. E. Nichols, in person, and S. N. Dada, for appellant Persis McCully.

      GeorgeW. Bradner, for the respondent.
   Hardin, P. J.:

Wesley McCully, the husband of Persis McCully, and the father of Edward McCully, was shown by the evidence to be the agent of McCully & Co., having general charge and the management of their business, and had the principal transactions with the plaintiff with respect to the property in question. The fact that he was not a member of the firm was not known to the plaintiffs at the time they dealt with the firm.

Compton Ferguson was called as a witness for the plaintiff, and said that he was agent for the plaintiff at and prior to the date of the order of January 25, 1884, and also said that he had a conversation with Wesley McCully “about the property to be shipped to him.” The conversation was before this order of January 2(5, 1884, was made concerning the consignment of goods to McCully & Co. to be sold, and he was asked to state the conversation. That question was objected to by the defendants as incompetent and improper, such conversation having been merged in the written contract. The objection was overruled and the defendants excepted. The witness answered: “ Plaintiff was to let him have these goods on consignment; he was to handle these goods on commission; that he would order from time to time as he sold out; he would order to take the place of the goods sold; this is the substance of the agreement with him previous to the writing out this order for the goods; he was to handle the Standard Wagon Company’s goods on consignment and he was to order other goods as he sold out; I never had any other or different contract with him except that one; subsequent to this conversation I sent him goods from time to time as he ordered them, and I think he sometimes telegraphed for goods ; he was not limited as to price at which he was to sell; they were billed to him at a certain price ; * * * I supposed Wesley McCully was a member of the firm ; I knew no one else in the business as a member of the firm.” We are of the opinion that no error was committed in receiving the evidence :

First. So far as the consignment of January twenty-fifth was concerned, it was proper to show that after the plaintiff received that order the goods were furnished to McCully & Co. While that order indicates the arrangement under which the property was received, and could not be contradicted by oral evidence, still it was admissible to show that after the reception of that order the property was shipped to McCully & Co. The bill of February 21,1884, stated that the goods were consigned to be paid for as sold. So, too, the bill of goods of May nineteenth stated “ consigned to be paid for as sold.” The same is true of the bill of June 9, 1884. We think the evidence was competent to show that the property was delivered to -McCully & Co. under the arrangement entered into stated by the witness, and that the oral evidence did not tend to contradict or vary any written contract existing between the parties with respect to the goods.

Second. It appears by the evidence that on the 10th of November, 1884, the agent of the plaintiff was at Fulton and ascertained the state of affairs between the plaintiff and the firm of McCully & Co. At that time it appeared that McCully & Co. had sold goods not theretofore settled for, amounting to $218.97. To meet that sum the plaintiffs received from McCully & Co. a check for $218.97. The check when presented was not paid. It never has been paid. The delivering of that check and giving a receipt therefor was no extinguishment of the original relation of the parties, was not intended and could not operate as such until the check was paid. (Schemerhorn v. Loines, 7 Johns., 312.) On the same occasion it was ascertained. that there remained unsold goods to the amount of $153.76. For that sum the plaintiff received a note dated November first, at three months, for $153.76, and subsequently, in September, rendered a statement that they had received such a note. The note was not paid at maturity, and was held by the plaintiff at the time of the commencement of this action.

We are of the opinion that inasmuch as the referee found, as a matter of fact., that the plaintiff did not rely on any false or fraudulent representations of any member of said firm of McCully & Co., or of any managing agent of said firm in selling the said goods to said firm, that it must be assumed that the goods, which were represented by the note of $153.76, were purchased in pursuance df the arrangement between the parties that goods that remained unsold in November-should be purchased by McCully & Co. and settled for by the giving of a note, and that the giving of the note, in pursuance of the arrangement, indicated by the evidence between the parties, operated to transfer the goods to McCully & Co. for the note given on the occasion of the adjustment.

In the absence of any finding of fraud, we think it but fair to assume that that was a purchase of the goods settled for by the note, and that McOully & Co. became the owner of the goods, and the plaintiff the owner of the note upon the consummation of the settlement in November, 1884. We are also of the opinion that the moneys arising from the sale of the goods, which are represented by the amount included in the check of $218.97, were received for the goods belonging to the plaintiff, and that McOully & Co. improperly mingled them with their assets and retained them down to the time of making the assignment, and that to that extent the assets that passed to the hands of the assignee are swollen by moneys that rightfully belong to the plaintiff, and when.the assignee received such assets, the moneys to the extent of $218.97 were impressed with the trust in favor of the plaintiff. Those moneys were received by the firm of McOully & Co. in a fiduciary relation, and the mixing them with other funds by the firm ought not to deprive the plaintiffs of a charge upon the mixed funds.

In note to Hooley v. Gieve (9 Abbott’s N. C., 42, 43) it is said, viz.: Where any person holding money in a fiduciary relation, mixes it with his own, the person for whom he holds it has a charge upon the mixed fund.” Defendant Nichols is not a dona fide purchaser or holder of the funds in which the plaintiff, as cestui que trust, was interested. (Hooley v. Gieve, 9 Abbott’s N. C., 29; S. C., 9 Daly, 104.) So far as the referee’s report applies to the $218.97, we think his conclusions are correct and should be sustained. If these views prevail, the judgment may be modified accordingly.

Judgment reversed and new trial granted, with costs to abide the event, unless the plaintiff shall stipulate to reduce the damages to $218.97 and interest thereon from the 10th day of November, 1884, to the date of the referee’s report, August 8, 1885, in which case the judgment so modified is affirmed, without costs to either party of this appeal.

Boardman, J., concurred.

Follett, J.:

I am unable to see how plaintiff is entitled to a lien on funds in the assignee’s hands, no part of which are shown to be or to have been derived from the moneys realized by McCully & Co. on the sale of the wagon, and therefore dissent.

Judgment reversed and new trial ordered, with costs to abide event, unless the plaintiff shall stipulate to reduce the damages to $218.97 and interest thereon from the 10th day of November, 1884, to the date of the referee’s report, August 8, 1885, in which case the judgment as so modified is affirmed, without costs to either party of this appeal.


author: Boardman, J.;

text:
    JAY A. LOOMIS, Respondent, v. WILLIAM RENDER, Appellant.

      Action for false imprisonment — when it will lie against a person preparing and procuring a warrant to he issued, and giving directions for its service with a had intent.

    Appeal from a judgment in favor of the plaintiff, entered on a verdict rendered at the Lewis Circuit, and from an order denying a motion for a new tidal made upon the minutes of the justice before whom the action was tried.
    The action was for false imprisonment, and the answer a general denial. The criminal complaint on which the warrant of arrest was issued was drawn up by defendant, signed and sworn to by one Crandall of the firm of Crapdall & Weed, and alleged upon information and belief that plaintiff did steal, etc., a mower at etc., and that Crandall & Weed are the owners and its value was fifty-seven dollars. Defendant presented the complaint to the justice, filled up the warrant of arrest and gave it, signed by the justice, to a constable and ordered him to arrest the plaintiff at any cost. Plaintiff was arrested and, after some arrangement between him and defendant, was discharged.
    In February, 1884, plaintiff made á contract with Crandall & Weed to furnish them with mowers, etc., to sell on commission. They were to pay plaintiff the proceeds of sales, and in the fall make a final settlement for the year’s business and give their note at one year for goods unsold. In October,'1884, Crandall & Weed gave their note for goods sold, and also a note for goods unsold, but plaintiff claims the last note recognized the title of the property in him until paid for. In January, 1885, Crandall & Weed having failed, plaintiff took one of the unsold mowers, and such taking constitutes the alleged larceny for which plaintiff was arrested. Before the failure and before such taking of the mowers by plaintiff, Crandall & "Weed had given defendant a chattel mortgage on this mower among other property. Plaintiff had a verdict of $125 damages.
    The court at General Term said : “ The justice had no right to issue the warrant against plaintiff. No facts were proved to justify it. (Code of Crim. Pro., § 149.) The defendant would not have been liable if he had only presented the complaint to the justice and asked for a warrant, if he had done so in good faith and without malice. (Von Latham v. Rowan, 17 Abb., 237.) In this case the court disapproved of the broad doctrine laid down in Comfort v. Fulton (13 id., 276), that the complainant would be liable for false imprisonment if the warrant was issued without competent evidence of guilt (p. 247) but adds, ‘ the action of false imprisonment could undoubtedly be sustained in that case (Comfort v. Fulton) upon the last ground intimated by Judge Goulb, that the defendants were conspicuous actors in the imprisonment of the plaintiff.’ In this case the defendant drew up the complaint, filled up the warrant for the justice to sign, received it from the justice, gave it to the constable and ordered him to arrest the plaintiff at any cost. The defendant also had a chattel mortgage, under which he claimed to hold the property, and it is open to inference, that the proceedings were had for his own benefit, Crandall & Weed, the alleged owners in the criminal complaint, having before that time made an assignment. Besides the defendant, after the warrant was issued, settled the matter with plaintiff and made him pay defendant two dollars costs, which he announced to the justice in language indicating malice and anger against the plaintiff. So that it became a fair question for submission to the jury, and was fairly submitted, whether the defendant was acting in good faith and as agent of Crandall & Weed in this prosecution, or whether, on the contrary, he was, in bad faith and with improper motives, invoking the instruments of the law to compel plaintiff to recognize and pay his claims. The jury must have found that no crime was committed by the plaintiff and that the defendant, in procuring the warrant and ordering plaintiff’s arrest,, acted maliciously or at least in bad faith. Under all the authorities such findings would sustain the verdict. The evidence justifies the jury in the verdict rendered.”

      II. Cook, for the appellant.

      H. J. Welch, for the respondent.
   Opinion by

Boardman, J.;

Hardin, P. J., and Fullett, J., concurred.

Judgment and order affirmed, ivith costs.


author: Follett, J.;

text:
    ERI D. HERRINGTON, Respondent, v. THE VILLAGE OF PHŒNIX, Appellant.

      Negligence — what facts do not establish actionable neglect, on the part of a village, to keep tlw covering of a sluice-way in one of its streets in repair.

    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury rendered at the Oswego Circuit, and from an order denying a motion for a new trial made upon the minutes of the justice before whom the action was tried.
    Jefferson street, in the village of Phoenix, is crossed by a sluice about two feet deep and four feet wide, the walls of which were made of hemlock timbers about six inches square, laid one above the other, and called, in the case, “ docking.” Upon the top of the docking stringers were laid, which were covered with plank. September 26,1878, the plaintiff’s horse stepped through the bridge and broke his leg, from the effects of which he became worthless. This action was brought to recover the damages, and resulted in a verdict for $152. A motion for a new trial was made on the minutes and denied, a judgment entered, from which and the order denying a new trial the defendant appealed.
    The court at General Term said: “ The evidence as to the cause of the accident is meager and unsatisfactory. As the plaintiff was driving north along the street the leg of his horse went through the bridge at its south side, next to the docking. The plaintiff says that the horse stepped on the docking, which was rotten, and his foot went through. "We do not understand that all of the docking on the south side gave way, or that the foot went through the docking; but infer that the upper surface of the top timber was rotten, that a piece crumbled out and let the foot down by the side of the docking. It also appears, inf eren ti ally, that the plank of the bridge had covered the docking, but on the occasion in question, the south or first plank was gone, leaving the docking exposed, and also an uncovered space between the docking and the second plank, into which the horse’s foot slipped from the docking.

      “ There is no evidence that the bridge was defective in design or construction ; it was not shown how, when or by whom the plank was displaced. For aught that appears, it might have been displaced by a trespasser, or accidentally by the last team crossing the bridge before the accident. The plaintiff lived in the village near the bridge, but does not claim to have discovered the defect before the accident. The age of the bridge was not shown, nor were any facts tending to establish negligence on the part of defendant’s officers, except that at the time of the accident a plank was displaced, and that the top'timber of the docking was rotten, but to what extent does not appear. We think the evidence falls short of establishing a cause of action against the defendant, and that the plaintiff ought to have been nonsuited.
    £t The judgment is reversed and a new trial granted, with costs to abide the event.”

      Avery <& Merry, for the respondent.

      8. N. Dada, for the appellant..
   Opinion by

Follett, J.;

Hardin, P. J., and Boardman, J., concurred.

Judgment and order reversed and new trial ordered, with costs to abide event.


author: Beadt, P. J.:

text:
    JOSEPH JACOBSTEIN, Appellant, v. MOSES L. ABRAMS, Respondent. Seven Other Actions Against Same Defendant, by Different Plaintiffs.

      Fraudulent confession of a,judgment — ii cannot be attached by a general creditor having no lien on the property of the debtor.

    A general creditor having no lien, either by judgment or attachment, upon the property of the debtor, cannot move to vacate and set aside judgments confessed by the debtor in favor of other creditors, upon the ground that such judgments •were confessed by the debtor for the purpose and with the idea and preconceived design of cheating his creditors.
    Appeal from an order made at Special Term appointing a referee to ascertain tlie facts and to report the same, with his opinion, with all convenient speed.
    The motion was made bj.a stranger to the action, one Otto Denecke, to set aside as fraudulent the judgment entered herein upon the confession of the defendant.
    IF. B. Tullís, for the appellant.

      A. Kling, for the respondent.
   Beadt, P. J.:

The motion was to sot aside judgments confessed in fraud of Otto Denecke, one of the creditors of the defendant Abrams, and to enjoin him from selling or otherwise disposing of goods or property of any kind, levied upon by virtue of executions issued in the actions in which the judgments were confessed. The order to show cause was granted on the affidavit of one Heidenheimer, who stated that Otto Denecke, in his behalf, was the assignee of claims of many creditors of the defendant to the extent of about $13,000, and had a lien upon the merchandise in the defendant’s store; that on or about the 15th of December, 1885, the defendant confessed judgments to the extent of about $18,000, which judgments were confessed by the defendant for the purpose and with the idea and preconceived design of cheating his creditors out of their respective demands; and that the defendant confessed and admitted to him that such confessions were made for the purpose of securing him, the defendant, and for no other purpose. It appeared that Denecke was neither a judgment nor an attaching creditor, but had commenced an action to recover the possession of certain goods of which he claimed to be the owner and which he claimed to be entitled to, and which had- been seized by a proceeding in this action.

In answer to the application, the judgment creditors respectively made affidavits showing that their judgments were founded upon proper consideration and sustaining them by proper allegations. The defendant denied that he had made the statement asserted by Heidenheimer, to the effect that the confessions of judgment were made for the purpose of securing him. He denied very emphatically ever having made such a statement and asserted it to be absolutely false and untrue. The gravamen of the motion was the statement, alleged to have been made by the defendant Abrams, that the judgments were confessed for the purpose of securing him. Mr. Denecke had no lien whatever, upon the property, except what was acquired by his action of replevin to recover certain goods of which he claimed to be the owner and of which he obtained possession. He was not an attaching creditor nor a judgment creditor, and had no lien, therefore, of any kind whatever, except that suggested, which was accomplished by his action, and which related, as we have seen, to certain goods claimed by him, and did not extend to the other goods, -if any, which were upon the premises of the defendant and subject to levy. It is not understood, therefore, on what principle he could move to set aside the judgments, having no lien by attachment or judgment, or otherwise, as already indicated. There is no doubt of the right to vaeate a judgment obtained by confession, upon motion, nor can there be any question that where facts are presented justifying such a proceeding the court may refer the contention to a referee for his investigation and opinion. The practice is well established and well known. But no case has been found in which a mere creditor could make such a motion, and the cases referred to by the respondent on the subject do not sustain the contrary principle.

In Norris v. Denton and others (30 Barb., 117) it is said that the right to attack a void judgment, entered by confession, is not limited to judgment creditors. It may be attacked by a grantee or mortgagee of premises upon which such judgment is a lien as well as by judgment creditors. The attacking person in such a case .as that has a quite different status from that occupied by a mere creditor. In Marks v. Reynolds (12 Abb., 403) the application to set aside the judgment was made by a subsequent judgment creditor.

In Bridenbecker, President, etc., v. Mason (16 How. Pr., 203) the motion was made by a judgment creditor. And in the case of Kendall v. Hodgins (7 Abb., 309) it was said to be settled, that a judgment creditor may obtain relief against such a judgment as complained of here by motion, citing the cases. The question discussed was, whether a bona fide purchaser was equally protected with the judgment creditor. And the court stated that the general rule was, that no one except a judgment creditor could come into court •to obtain relief against a transfer made or judgment confessed by •his debtor, as being a fraud upon creditors ; and, further, that the •general rule was not that a creditor-at-large could not obtain relief by motion, which he might in such a case obtain by action, but •that -he could not be heard at all. For this reason, without further •elaborating the point, the order should be reversed, with ten dollars costs and the disbursements of the appeal.

Daniels and Churchill, JJ., concurred.

«Order reversed.


author: Brady, B. J. :

text:
    JULIUS KAYSER, Respondent, v. ANNA M. ARNOLD and Others, Appellants.

      Use of patented ao'tiales — actions to restrain an unlawful use thereof must he brought in the United States courts.

    The complaint alleged that the defendants Arnold, for the benefit of the plaintiff, caused certain mechanical appliances for certain patented machines to be made and constructed, upon the agreement that all the machines so completed, to the number of one hundred or more, if required by the plaintiff, should belong to and be his property, and that he was to have the exclusive right to use them on payment of certain royalties; that he furnished the money to complete the machines; that six machines were finished, and were to have been delivered to him on March 81, 1886, when a formal written agreement was to have been executed; that the defendants refused to deliver the machines, and sold them to a rival firm. The relief sought was that the sale of the machines be adjudged to be subject to the exclusive right of the plaintiff thereto, and that the defendants be compelled to execute and deliver the written agreement and to deliver the completed machines.

      Held, that as the plaintiff sought to prevent the manufacture and sale of patented articles by the patentee, under an agreement by which he claimed title from him, this court had no power to grant the relief sought.

      Continental Store Service Company v. Ciarle et al. (100 N. Y, 865) followed.
    Appeal from an order granting and continuing an injunction.

      Frank F. Blackwell and Sanford B. Steele, for the appellants.

      A. J. Dittenhoefer, for the respondent.
   Brady, B. J. :

The complaint alleges that the defendants Arnold, for the benefit of the plaintiff, caused certain mechanical appliances for certain patented machines to be made and constructed; that there was a complete agreement between them that all the machines so completed, to the number of one hundred and more, if required by the plaintiff, should belong to and be his property, and that he was to have the exclusive right to use them on payment of certain royalties; that he furnished the money to complete the machines ; that six machines were finished with the money so advanced, which were to have been delivered to him on the 31st of March, 1886, when the formal agreement in writing between the parties was to have been executed ; and that instead of delivering them, one of the Arnolds informed him that he would not deliver them, and, in violation of his agreement, sold the machines to the defendants Jennings & Co., a rival firm, who intended to operate.and use the same. The relief demanded was:

First. That the sale of said machines, by defendants Arnold to the defendants Jennings, be adjudged to be subordinate to the exclusive right of this plaintiff in and to the same.

Second. That the defendants Arnold be directed to execute and deliver to plaintiff the written agreement set forth in the complaint.

Third. That said defendants Arnold be directed to deliver to plaintiff the six completed machines.

On this complaint, and the supporting affidavits, an injunction was issued restraining the defendants :

1. From making, using, vending, delivering, working or putting into practice, for the purpose of making gloves or mitts, excepting for the plaintiff, any of the said machines.

2. From asserting any claim or right to make, construct, vend, deliver or work said machines.

The defendants sought, by a proper proceeding for that purpose, to dissolve the injunction, and upon the hearing an order was made reserving the merits for consideration ; and requiring the plaintiffs to consent to the submission on short notice, for the consideration of this court, of the objections interposed on behalf of the defendants, that the court having no jurisdiction so to do, the injunction was issued without authority.

It is deemed unnecessary to examine the numerous cases which bear upon the subject, and by which an effort has been made to sustain the jurisdiction of the State courts in analogous cases to the one under consideration, inasmuch as the very recent decision made in the case of the Continental Store Service Company v. Clark et al. (100 N. Y., 365), seems to be conclusive upon the subject, and against the exercise of the power invoked and employed in this case. That was an action, as stated by the court, to compel the specific performance of a written agreement under seal, and to remove a cloud on the title of the plaintiff to certain property manufactured by him by virtue of the agreement, and as the assignee of the same and of certain patents therein mentioned, and to prevent the defendants from using the patents pendente lite. The patents were issued, it appears, to Milton Clark, and tlie plaintiff claimed title by virtue of an assignment to them, whilst the New York Store Service Company insisted that they had acquired the superior title. A preliminary injunction was granted which was made permanent, but which, upon an appeal to the General Term, was modified so far as it restrained the defendants from putting up or in use, implements, machines, etc., or any of them, under the patents and systems on the 'ground that it was made without authority! And on appeal to the Court of Appeals the order, as modified, was sustained upon the doctrine that the power employed rested exclusively in the courts of the United States. In the course of the opinion it is said: “ The federal courts have exclusive jurisdiction under the Constitution and laws of the United States in cases of any infringement of the rights granted by a patent issued by the authority of the government; and where such rights are conferred by law and a remedy is provided as to the forum where the same may be enforced, the party must be restricted to the remedy and the forum provided.”

The decisions of the courts of this State are quite uniform in holding that they have no jurisdiction in a cause to prevent an infringement upon a patent right, or to restrain the violation of a light conferred by authority of the patent laws of the United States.”

It will have been observed that that controversy was between two persons claiming the same right under patents about the validity of which there was no dispute, and yet the court held that an injunction which restrained the manufacture of the patented article could not be granted. Here the plaintiff seeks to prevent the manufacture, and sale of patented articles by the patentee under an agreement, claiming title from him, and, therefore, it is clearly within the principle laid down in the case referred to in the Court of Appeals, which is indeed a stronger one in favor of the plaintiff therein than the present.

For these reasons, we think the court had no jurisdiction, and that the order appealed from should be reversed, but, under the circumstances, without costs.

Daniels and Churchill, JJ., concurred.

Order reversed.


author: Brady, P. J.:

text:
    CHARLOTTE A. WAKEMAN and PHILIP H. VERNON, as Executors, etc., of WILLIAM W. WAKEMAN, Deceased, Appellants, v. GEORGE H. EVERETT, Respondent.

      Counter-claim, or set-off — ■ when a claim, arising from the act of cm executor cannot he set off against a claim due to the testator — Code of Civil Procedure, sec. 506.
    The plaintiffs brought this action to recover moneys alleged to have been due to their testator, at the time of his decease, upon a note signed by the defendant, and for other money advanced and paid out for defendant’s use. The defendant denied the indebtedness, and set up as a counter-claim a demand against the plaintiffs for the conversion of certain stocks and securities which he had deposited with the testator during his lifetime, the counter-claim being based upon acts of the plaintiffs done after the death of their testator.

      Held, that as the right of the defendant to recover for the conversion of the securities was based upon the wrongful acts of the executors, and not upon those of the testator, it was not available as a counter-claim or set-off in this action.
    Appeal from a judgment in favor of the defendant, entered on the report of a referee.

      P. H. Vernon, for the appellants.

      Peokham, c& Tyler, for the respondent.
   Brady, P. J.:

The plaintiffs sought hy this action to recover an alleged indebtedness of the defendant for moneys due the estate which they represent, not only upon a note signed by the latter, but for moneys advanced, paid and laid out and expended on joint and several transactions with the decedent, Mr. Wakeman. The defendant answered, denying the indebtedness charged, and alleged not only a settlement, account stated, but the possession of certain stocks by the plaintiffs, to which they succeeded as such representatives, and a counter-claim, which resulted from their conversion of these stocks by a refusal, upon a proper demand, to deliver them to him. The referee, upon what seems to be a thorough investigation of all the dealings between him and the decedent, and the plaintiffs as well, found in his favor, and gave him judgment for his counterclaim averred and established.

Several questions, however, of fact and of law, are presented for consideration, upon exceptions duly taken in various forms. The record has been carefully examined with reference to all of them, but it is not necessary to discuss any other than that based upon the recognition and attempted enforcement of the counter-claim. The stocks, upon the conversion of which it rests, were deposited with the decedent, not as collateral security, but from friendly and business relations existing between him and the decedent, and the confidence of the latter in his integrity; indeed, it may be said, for safety. The record, it is true, contains many details well calculated to invoke contention upon the condition of the accounts between them, but, nevertheless, not difficult of solution, when deliberately and carefully examined in the light of the evidence.

The insuperable objection to the judgment is, however, that the counter-claim on which it is based was improperly admitted.

The claims urged herein by the plaintiffs, in the main, arose prior to the death of the decedent, and the counter-claim from acts of the plaintiffs subsequent thereto. The defendant’s claim did not exist, therefore, at the time of the death. The Code, by section 506, does not recognize such demands as counter-claims or set-off. It is a substitute for sections 23 hrid 21 of the Revised Statutes, volume 2, page 355. It provides that, in an action brought by an executor or administrator in 1ns representative capacity, a demand against the decedent, belonging, at the time of his death, to the defendant, may be set up as a counter-claim as if the action had been brought by the decedent in his' lifetime, etc.

The counter-claim interposed herein is not one which belonged to the defendant at the time of the death of the decedent. It arose after such death, and rests upon alleged tortious acts of the plaintiffs in the management of the estate which they represent. The decisions illustrative of the effect of the provisions of the Revised Statutes (supra), and construing, them, are applicable herein for the reason already suggested that the provisions of section 506 of the Code arc substantially the samé. ■

In Root v. Taylor (20 Johns., 137), it was held, in an action brought by an administrator for a debt due to his intestate, the defendant could not set off a debt due from the intestate purchased by him after his death. In Mercein v. Smith (2 Hill, 210), the defendant sought to set off the amount of a note made by the intestate and indorsed for his accommodation, and which the defendant paid after the intestate’s death, but it was held not to be a demand existing at the time of his death and, under the provisions of the Revised Statutes (supra), not to be a proper subject of set-off. This case was cited with approval in Patterson v. Patterson (59 N. Y., 574), in which it was decided that in an action by an executor for a cause of action arising after the testator’s death, the defendant could not set off a demand against the testator, although it existed at the time of such death. In Thompson v. Whitmarsh (1 East. Rep., 714; S. C., 100 N. Y., 35), it was held that upon new contracts made by an executor or administrator, and never existing in favor of the decedent, but growing out of the contracts and dealings of the former alone, the action was properly brought in the name of the individual, and that a debt against the decedent could not, under such circumstances, be made the subjéct of a counter-claim. It must be paid in the ordinary course of administration, and can gain no preference and is entitled to none. It was said in that case that the results proclaimed were the effect of the changes, if any, accomplished by the provisions of the Code. In this case the counter-claim, as already stated, rests upon the alleged misconduct of the plaintiffs in withholding and converting the defendant’s stock, acts committed subsequent to the decease of the decedent, and for reasons already assigned, not, therefore, the subject of set-off. In an action brought by the executor or administrator as to transactions subsequent to the death of the decedent, but relating to the estate, such a counter-claim as that, presented here might be employed, doubtless, to the extent, at least, of extinguishing the claim urged, and so it might be here, if the facts required the application of such a rule.

The distinction between causes of action accruing during the life of the decedent, and those originating afterwards, is kept constantly in view by the court, and they have held, as illustrated by Justice Daniels, in Bingham v. Marine National Bank, decided herewith, that these causes of action cannot be united. (See cases cited.) There are many adjudications upon the subject of set-offs and counterclaims. In the investigation of the question discussed many have been found and read, but no one, after diligent examination, has been found which permits the use as a set-off or counter-claim, a demand such as the defendant’s.

The judgment must, therefore, be reversed, unless the respondent consents to modify it by deducting the amount of the counterclaim, but without prejudice to any right in regard to it to be asserted in another action if one be brought. If this be done, then the judgment so modified is affirmed, without costs to either party of this appeal, as we discover no other error committed during the trial, or in the finding of facts or refusals to find or exceptions taken, requiring us to reverse the judgment. If not, then the judgment is reversed, with costs to abide the event. The costs in the court below were properly awarded against the plaintiffs, but under the circumstances it is thought they should be paid out of the estate.

Daniels, J., concurred.

Judgment reversed, unless plaintiffs consent to the modification suggested, in which case judgment' affirmed, as modified, without costs, otherwise judgment reverséd, with costs to abide event.

       Reported post, page 377.


text:
    MARY E. DEVLIN, as Administratrix, etc., of JAMES DEVLIN, Deceased, Respondent, v. THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Appellant.

      Discharge of servant for sichness — when notice of the discharge must he given to him.

    Upon tie trial of this action, brought to recover the salary of Janies Devlin, the plaintiff’s intestate, for the years 1879 and 1880, it appeared that Devlin was employed in the finance department of the city of New York as door-keeper, and that from the commencement of his employment until the end of the year 1878 he was regularly paid, although he was absent by reason of sickness and on leave for some months during that year. During the years 1879 and 1880 he was sick, and only occasionally appeared at the office. His name, however, appeared upon the pay-rolls each month, but the amount of the salary was erased by having a line drawn through it in red ink, pursuant to an order of the comptroller, and on the margin of the roil were written the words “absent, all the month, sick, without pay.” This fact- was not communicated to Devlin, nor was he ever notified that his services were no longer required.

      Held, that he was entitled to receive his salary for the years named.

      O'Leary v. Board of Education (98 N. Y. 1) followed.

      Appeal from a judgment in favor of the plaintiff, directed by the court at circuit.

      David J. Dean, for the appellant.

      Charles E. Miller, for the respondent.
   Brady, P. J.:

This action was brought to recover the salary of James Devlin, the plaintiff’s intestate, for the years 1879 and 1880, at the rate of ninety dollars per month. His employment was admitted by the defendants, but it was claimed -that he performed no services during the years named.

Upon the trial it appeared that Devlin was employed in the finance department as door-keeper, and that, from the commencement of his employment until the end of the year 1878 he was regularly paid, although he was absent by reason of sickness and clearly on leave for some months during that year. It also appeared that, during the years 1879 and 1880, he was sick, and although only occasionally present at the office of the comptroller, his name still appeared upon the pay-rolls, and the amount of his salary, also, for each month. The deputy comptroller, who was examined as a witness, stated that Mr. Devlin was sick during the years mentioned, and that the nature of his malady was such that it was supposed he would never recover.

The amount of the salary, it appears, was erased by a line drawn through the same in red ink, by order of tlxe comptroller, and on the margin of the pay-roll were written the words absent all the month, sick, without pay.” But there is no pretense that this was communicated to Devlin, or that he was ever notified that his services were no longer required, although this erasure and memorandum appears to have been repeated during each month of the two years mentioned.

The case presented, therefore, is the claim of a person who was employed in the finance department whose absence was occasioned by sickness, and, therefore, justifiable; who occasionally presented himself at the proper place, and to whom no notice of his removal or of the intention of the department to withhold from him his pay, was ever communicated. His occasional presentation at the finance department would indicate that he still regarded himself as subject to orders, whilst the erasure of the sum for his monthly compensation would seem to indicate that the department did not intend to pay him his salary, in consequence of his nonperformance of the duties of his position. The difficulty in regard to the last indication is, that it was not, according to the record, made known to the intestate, and was, therefore, nothing more than a private memorandum indicating that the department intended to make him no compensation because he performed no duty. If he had been advised of this intention, and had not then rendered the services which his position demanded, the city would not be liable for the amount of salary agreed to be paid; his occasional call at the office of the finance department, and the absence of any notification that his services were no longer required or that he would not be compensated, justified the inference by him that his leave of absence was continued. In other words, the omission to notify him as suggested was a circumstance from which he might well infer that his leave of absence was continued. And we think that this view of the case brings it within the rule established by the case of O’Leary v. The Board of Education (93 N. Y., 1). The court in that case, which was one of absence, said that it was true that the leave of absence was somewhat indefinile, no time being fixed by which it was limited to any particular period; but that it could have been withdrawn at any time by the defendant, or, in the exercise of a discretion, brought to an end by notice to the plaintiff that his services were no longer required, or by a resolution discharging him from his position.

That a leave of absence was given Devlin is established by the fact that during a part of the year 1878 he was absent from the same cause which prevented his attendance in 1879 and 1880, and his salary was, nevertheless, paid for such part. We think, as suggested in the case cited, that there should have been some notification to him under the circumstances, that his services were no longer required, and that, as such notification was not given, the judgment should be affirmed. An examination has been made of the cases referred to by the learned counsel for the appellant in his brief, but they are regarded as having no controlling effect, except the case of O'Leary (supra), also cited, and of which the result declared herein is predicated.

For these reasons the judgment should be affirmed, with costs.

Daniels and Macomber, JJ., concurred.

Judgment affirmed, with costs.


text:
    MARY WIEDMER, Appellant, v. THE NEW YORK ELEVATED RAILROAD COMPANY, Respondent.

      Negligence — what fads-impose upon a railroad company, emitting hot cinders from, its engine, the duty of showing the absence of negligence on its part.

    Upon the trial of this action, brought to recover damages for personal injuries sustained by the plaintiff, it appeared that while walking on Third avenue, in the city of New York, the plaintiff was injured by a hot cinder, which fell from one of the defendant’s engines into her eye, causing a serious injury to it. She gave no other evidence to establish the negligence of the defendant. A motion for a nonsuit having been denied, the case was submitted to the jury upon the plaintiff’s testimony. The jury found for the plaintiff, but the verdict was set aside by the justice who presided at the trial, upon the ground that the plaintiff had failed to prove that the accident was caused by the negligence of the defendant or its servants.

      Held, that the justice erred in so doing.
    That as the plaintiff in using the street was exercising a right entirely independent of, and in no -way connected with, the defendant’s use of it, she was entitled to be protected in the exercise of such right, and that after she had proved the injury, under the circumstances disclosed, the negligence of the defendant was established prima facie, and the onus was thrown upon the defendant to show absence of negligence, if that could be done.

      Searles v. The Manhattan Railway Company (5 East. Rep., 66) distinguished.
    Appeal from ail order granting a motion for a new trial, made upon the minutes of the justice before whom the action was tried, after a verdict had been rendered in favor of the plaintiff.

      David Levy, for the appellant.

      Edward S. Eapallo, for the respondent.
   Brady, P. J.:

This action was brought to recover damages for personal injuries. The plaintiff, while walking on Third avenue, in this city, was injured by a hot cinder, which fell from one of the defendant’s engines into her eye, causing a serious injury to it.

She gave no other evidence to establish the negligence of the defendant. There was, in other words, no direct proof that the damage to her eye was caused in consequence of any negligence or unskillfulness chargeable to the defendant, and a motion was made for a nonsuit, which was denied. The case was submitted to the jury upon the testimony given on behalf of the plaintiff.

Several requests were presented by the defendant’s counsel, which were accepted by the learned judge and charged. He was requested, however, to charge that the facts of the escape of a cinder and the consequent injury to the plaintiff were not, of themselves alone, any evidence of negligence on the part of the defendant, which he declined to charge, and to which an exception was taken.

The jury found for the plaintiff, but the learned judge who presided at the trial, upon an examination of all the authorities, felt himself bound to grant a new trial, for the reason that in this, as in all kindred cases, he said, it was elementary law that the burden of proof was upon the plaintiff to establish the fact that the accident was caused by the negligenee of the defendant or its servants, citing the cases to establish that proposition, and to which must be added the recent case of Searles v. The Manhattan Railway Company (5 North East. Rep., 66), in which the question was considered. There is, in that case the court said, sufficient evidence to show that the plaintiff’s eye was injured by a cinder lodged therein; that it came from a locomotive on the defendant’s railway, and that the plaintiff was free from contributory negligence — all of which was established in this case as well. But the court said the defendant had a right to operate its railway over the street by steam, and to generate steam by the use of coal, and any damage caused by the careful and skillful exercise of its lawful rights could impose no obligation upon it.

It appeared, however, in that case, as stated, from indisputable evidence, that the appliances used upon the defendant’s locomotives to prevent the escape of sparks and cinders were skillfully made and the best known, and that 'there was no evidence that any of the appliances were defective or out of order, but, on the contrary, that they were in order. It does not appear from the report of the case, however, whether the plaintiff attempted, in the first instance, to establish the fact that there was a careless or unskillful exercise of the right of the defendant to operate its railway by steam; and, therefore, the case is not controlling here. If it appeared that, on proof of the injury, the plaintiff had been required to prove a failure by the company to adopt measures to prevent such an occurrence, it would be otherwise. It would seem to be an extraordinary proposition that a person using, as a matter of right, the highway and receiving such an injury as the plaintiff did, should be obliged to show, in the first instance, that it resulted not only from the defendant’s act, but, in addition thereto, that the defendants had not adopted the best means of preventing such an occurrence. This would necessarily involve an examination of the defendant’s engine and an examination, scientific in its character, as to whether, by any known contrivance, it could have been avoided. It would seem more in accord with the principles of natural justice to exact such evidence in response from the company. If the injured person were using the defendant’s road, the doctrine declared would have been in accord with established rules. Here, however, the plaintiff ■was in the exercise of a right entirely independent of, and in no way connected with, the defendant and entitled to protection in the exercise of such right. When the plaintiff proved the injui’y under the circumstances disclosed, the negligence of the defendant was established prima facie, and the onus was thrown upon the defendant to show absence of negligence, if it could be done. The injured person cannot be expected to attempt the useless feat of pursuing the train in order to secure an examination of its locomotive with a view of discovering what mode was adopted to prevent injuries such as described.

The order appealed from should be reversed and the judgment affirmed.

Daniels and Haoomber, JJ., concurred.

Order reversed and judgment affirmed.


author: Daniels, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. RICHARD W. RYAN, Respondent, v. THE CIVIL SERVICE SUPERVISORY AND EXAMINING BOARDS OF THE CITY OF NEW YORK, etc., Appellant.

      Employees of the commissioners, appointed to construct the new aqueduct, are employees of the city of New York and subject to examination by its Civil Service Commis~ doners —1883, chap. 490 —1884, chap. 410, sec. 8.
    The relator having applied to the secretary of The Civil Service Supervisory and Examining Boards for examination tinder the N ew York city civil service regulations, for employment as a clerk, copyist or book-keeper, by the commissioners for building the new aqueduct, created by chapter 490 of 1883, his application was rejected upon the ground that such commissioners were not officers of the city of New York, but of the State, and that their employees are not included within the civil service system of the city.

      Held, error.
    That the persons employed by the aqueduct commissioners were employees of the city, and were accordingly within the description of persons required to be examined by the Civil Service Commissioners, as provided in section 8 of chapter 410 of 1884.
    Appeal from an order granting the application of Richard W. Ryan, relator, for a peremptory mandamus to compel the Civil Service Supervisory and Examining Boards of the city of New York, and Charles H. Woodman, secretary thereof, to entertain the application of said Richard W. Ryan, and notify him to appear for examination pursuant to the civil ‘service regulations of the city of New York.
    The relator shows that he applied to the secretary of the New York Civil Service Supervisory and Examining Boards for examination, under the New York city civil service regulations, for employment by the commissioners for building the new Croton aqueduct, and that the application was rejected upon the ground that such commissioners are not .officers of the city of New York, but of the State, and that their employees are not included within the civil service of the city. The employees of such commissioners had been included by Mayor Edson in his classification of the city civil service.
    Upon , the hearing at Special Term the following opinion was delivered:

      “Lawrence, J.:
    This is an application for a peremptory mandamus to compel the Civil Service Supervisory and Examining Boards of the city of New York, and Charles H. "Woodman, the secretary thereof, to entertain the application of Richard W. Ryan, and notify him to appear for examination pursuant to the New York city civil-service regulations.
    It appears by the affidavit of the relator that he has applied to the secretary of the said boards for examination for employment by the commissioners for building the new Croton aqueduct, and that his application has been refused on the ground that the said commissioners are not officers of the city of New York, and their employees are not included within the civil service of the city of New York. It appears, also, from the papers submitted on the part of the relator, that in the month of August, 1884, the mayor of the city arranged a certain classification of the civil service of the city of New York, and that in such classification were included the clerks and employees of the aqueduct commission, and that such employees were so included after consultation with the State Civil Service Commissioners, and upon their advice that such employees wore pei’sons in the employ of the city, and not of the State. It appears from the papers read by the counsel to the corporation that the contrary opinion has been expressed by him and his predecessor in office, and this proceeding has been brought for the purpose of determining whether officers and employees of the aqueduct commission are subject to the civil service regulations of the city or those prescribed by the State Civil Service Commissioners. It cannot be disputed that the aqueduct commissioners are new officers, and that at the time of the passage of chapter 490 of the Laws of 1883, creating such commissioners, there were no officers in existence in the city government who were authorized to exercise the powers confided to said commissioners by said act. This, however, is not conclusive upon the question whether the commissioners are to be regarded as State or city officers. Nor does the case of the People ex rel. Wood v. Draper (15 N. Y., 532) determine the question which is here presented for consideration. That case holds that section 2, article 10 of the Constitution of 1846 leaves the legislature at liberty to provide for the election or appointment, in. any manner it may deem suitable, of all officers, local or general, whose offices might thereafter be created by law; and also of all other than county, city, town or village officers whose offices were then in existence, but the mode of whose election or appointment was not prescribed by the Constitution. Under that decision the legislature may create a new city office and may prescribe the manner in which the same may be filled, whether by election or appointment or in any manner it may deem suitable.
    The case of the Metropolitan Board of Health v. Heister (37 N. Y., 661) is to the same effect. (See, also, People v. Pinckney, 32 N. Y., 382.)
    Some light may, however, be thrown upon this question by the decisions which were made by the Supreme Court and late Court of Errors in relation to the liability of the city of New York for acts done or omitted by the water commissioners appointed under the acts- of 1833 (cliap. 36) and 1834 (chap. 256), under which the Croton was first introduced into this city. The powers conferred by those acts upon the commissioners therein provided for were very similar, although not specified in the acts so much in detail as those confided to the aqueduct commissioners of 1883.
    In Appleton v. The Water Commissioners of New York (2 Hill, 432), it was intimated, although not expressly decided by Beonson, J., in delivering the opinion of the court, that the remedy on' the contract made by such commissioners was against thp corporation of the city of New York.
    In Bailey v. The Mayor, etc., of New York (3 Hill, 538), it was held that commissioners appointed under the act of 1834, though appointed by the State, were the agents of the corpoi’ation, and that the latter was, therefore, liable for injuries sustained by the plaintiff’s land arising from the careless and unskillful construction of a dam ■ across the Croton river. That case subsequently went to the Court of Errors, and is reported in 2 Denio (p. 433) as The Mayor, etc., of New York v. Bailey, and it .was held that the corporation was liable to third persons for injuries sustained by them by the negligent and unskillful construction of the da’m in question.
    If these cases have not been restricted or modified by subsequent decisions, it would appear that the aqueduct commissioners, although appointed by the legislature, are «the. agents of the city; and if the agents of the city, that they are within the provisions of the act in relation to the civil service of the city.
    It is said, however, by the learned counsel to the corporation, that this case is within the principles stated in Russell v. The Mayor (2 Denio, 461); Martin v. The Mayor, etc. (1 Hill., 545), and The New York and Brooklyn Saw-Mill and Lumber Company v. The City of Brooklyn (71 N. Y., 580).
    In Martin v. The Mayor, ete., it was held that a municipal corporation is not liable for the misfeasance or nonfeasance of one of its officers in respect to a duty specifically imposed by statute on the officer; otherwise if the duty is one imposed absolutely on the corporation as such. In that case the plaintiff sued the corporation of the city of Brooklyn, alleging that while Brooklyn was a village the president and trustees instituted proceedings for the purpose of laying out certain streets, and went on to an assessment of damages pursuant to the statute. That a sum was awarded to the plaintiff for his land, proposed to be taken, and that the commissioners .of estimate, etc., reported to the trustees, and that the proper notices were given and published, but though no appeal was interposed, they had willfully omitted the duty of causing the report to be filed with the clerk of the Common Pleas of Kings county, so that it could be confirmed. It was also alleged that the board of trustees, after the assessment was returned, resolved that it was expedient to open the streets, provided the parties interested would waive the first report, the filing of the same, and the appointment •of commissioners; and that a committee should be appointed to .treat and agree with the owners of ground required for the streets, .■and the plaintiff consented to such waiver, in writing, was willing, •etc., and gave notice, etc., but that the trustees refused to proceed in the fulfillment of the agreement. The court held in that case •that municipal corporations were not liable for omissions of duty .specifically imposed by statute on one of their officers. That in ■that respect the latter are quasi civil officers of the government, though appointed by the corporation, and that the relation of master and servant did not exist between the corporation and the officers.
    In Russell v. The Mayor, ete. (2 Denio, 461), it was held that the mayor and aldermen, in making an order for the destruction of ■.a building, pursuant to the statute, did not act as the officers or agents of the corporation, but as magistrates designated by the legislature for the execution of a public duty. In that case, Porter, Senator, in his opinion, distinguishes the case of B'ailey v. The Mayor, etc., from that of Russell, on the ground that in the former case “ the corporation had an interest in the grant made by the law; ” that “ it held a large amount of property under it; had passed ordinances in respect to the execution of the work and the doings of the commissioners; and in every respect had made the work their own, and consequently had made the commissioners their agents.”
    In the New Y~ork and Brooklyn Saw-Mill and Lumber Company v. City of Brooklyn (71 N. Y., 580), it was held that “ a municipal corporation is not liable for the acts or omissions of an officer, elected or appointed by it, in respect to a duty specifically imposed upon the officer, which is not connected with his duties as agent of the corporation, and in which it has no private interest.” That“ it is only liable for the acts and omissions of officers in the performance of duties imposed upon the corporation.”
    The complaint in that action alleged, in substance, that “ by an act to improve the Growanus canal, in the city of Brooklyn (chap. 678, Laws of 1866, arid the acts amendatory thereof; chap. 884, Laws of 1867; chap. 793, Laws of 1869), commissioners were appointed to dock the sides of said canal, the expense to be assessed upon the property; that the commissioners caused docks to be erected in and upon the plaintiff’s land adjacent to said canal, but prosecuted the work so negligently that the dock sank; that, by an act passed in 1871 (chap. 839, Laws of 1871), it was provided that the common council of the city should cause the docks to be repaired or rebuilt at the expense of the city; that thereby the duty $o rebuild the dock on plaintiff’s land was imposed upon the city, which it had neglected to perform, to his damage, etc.” Upon demurrer to the complaint it was held that the court “ could not take judicial notice that the canal was a public highway, and, in the absence of allegations to that effect, could not presume it to be such; that, so far as appeared, the work was for the benefit of individuals solely; that it appeal’s, by the amendatory act of 1869, to have been the intention of the^ legislature to substitute the common council for the commissioners, without affecting the relations of the city to the work; that both bodies were to be regarded as agents of the State, not of the city, and for their acts or omissions the city was not liable; that the act of 1S71 did not impose the duty of rebuilding upon the city, but the directions therein to the common council, it was to be presumed, were given to them as State agents, and that, therefore, the city was not liable.” It was also held “that the fact that the expense of rebuilding was cast upon the city did not affect its liability.”
    It will be observed, upon examining the three cases last cited, that they are placed upon the ground that the work to be done was not a corporate work, but was either a work for the benefit of private persons or directed to be done by the statute of the State, having no relation to corporate duties or interests.
    In that case, Church, C. J., at page 584, says: “A municipal corporation is held liable for the acts of an agent it employs to do business for its own corporate or private benefit, the same as a private individual, and this, although the agent may be appointed by the legislature, or under a legislative authority, if it accepts and ratifies the appointment,” and he cites approvingly the case of Appleton v. The Water Commissioners (2 Hill, 433), to which 1 have above referred. lie also says that “ we have recently held that a municipal corporation is not liable for the omission to perform or for negligence in the performance of a public duty, laid upon an independent officer, in which it has no private interest, and from the perfoi'mance of which it derives no special or corporate benefit, although it is required to elect or appoint such officer, and although the officer has in charge, and the negligence imputed is the use of, property owned by the corporation,” citing Maxmilian v. The Mayor, etc. (62 N. Y., 160), and other cases.
    Folger, J"., in delivering the opinion of the court in Maxmilian v. The Mayor, etc. (62 N. Y., 170), after having referred to certain cases, and among others to that of Bailey v. The Mayor, eto. (2 Denio, 433), says, at page 170: “It is not always easy to say within which class a particular case should be placed. But when it is determined that the power and duty are given and taken for the benefit of the corporation as a corporate body, and the act to be done is to be done by it through agents of its appointment, and ■under its control and power of removal, there is no doubt of its liability for negligent omission or negligent attempt at performance. "When the powers created and duly enjoined are given and laid upon officers to be named by the corporation, but for the public benefit and as a convenient method of exercising a function of general government, and the corporation has no immediate control nor immediate power of removal of those officers, nor of their subordinates and servants, then it is not liable for their negligence, omission or action.”
    In that case it was held that the city corporation was not liable for the negligence of an employee of the commissioners of charities and correction in driving an ambulance wagon belonging to the city which struck and caused the death of the plaintiff’s intestate, and it was held that the duties of such commissioners were public in their character, and that from their performance no special corporate benefit is derived.
    Is it not, however, clear that from the work to be performed by the aqueduct commissioners a special and corporate benefit will be derived by the city of New York; and can it not with much force be urged that, under the decision in the Maxmilian case and the cases of Bailey v. The Mayor, ete., and Appleton v. 1'he Water Commissioner's {supra), the aqueduct commissioners, though appointed by the State, are to be regarded as agents of the city, and therefore city officers? As I have already said, the duties which were to be performed by the water commissioners, under the acts of 1833 and 1834, were very similar to those confided to the aqueduct commissioners under the act of 1883, and it seems to me that if the former commissioners were regarded as the agents of the city, the latter must be also. .
    ¡By section 1 of the act of 1883, chapter 490, the mayor, comptroller and commissioner of public works, and certain individuals therein named, are appointed commissioners for the purpose of supplying the city with an increased supply of pure and wholesome water. The salary of the commissioners is to be fixed by the board of estimate and apportionment. The commissioner of public works is to prepare plans, etc., which are to be submitted by him to the commissioners, who may adopt, modify or reject the same in whole or in part. The plans are to be filed, etc. Maps ai-e also to be prepared by the commissioner of public works, to be filed as in the acts specified; and the counsel to the corporation for and on behalf of the mayor, aldermen and commonalty of the city of New York is required to apply to the Supreme Court for the appointment of commissioners of appraisal, to appraise the compensation to be made to the oyraers, etc., of the real estate proposed to be taken, etc., for the purpose indicated in the act. The fee of the lands taken is to be vested in the mayor, aldermen and commonalty of the city of New York. The corporation counsel is to present the report of the commissioners for confirmation. The awards made by the commissioners when confirmed are to be paid by the city within four months. In case of default, a right of action therefor is given to the party in whose favor the award is made. It is also provided that the aqueduct commissioners, subject to the approval of the board of estimate and apportionment of the city of New York, may agree with the owners, etc., as to the amount of compensation to be paid to such owners for the taking or using and occupying of real estate.
    “ By section 25 of the act, upon filing the oath of the commissioners of appraisal, etc., the commissioner of public works shall from time to time, as may be necessary, prepare and submit to the aqueduct commissioners and to the counsel to the corporation, forms of contracts and specifications and bonds for the faithful performance thereof. It is further provided that said forms shall be either approved or rejected by the said aqueduct commissioners, and shall be approved as to form by the counsel to the corporation ; and in case of rejection of the same, said commissioner of public works shall prepare and submit other forms, etc. It is further provided that the aqueduct commissioners shall determine what provisions shall be embodied in said contracts in order, so far as may be possible, to save the city from loss, embarrassment and litigation by reason of any work done or supplies furnished thereunder.
    “ By section 30 it is provided that the contracts when awarded shall be executed in triplicate by the contractor or contractors on the one part and the aqueduct commissioners, acting for the city of New York, on the other part. Two of said originals are to be filed, one in the finance department, the other with the aqueduct commissioners, and a copy thereof shall be furnished to the department of public works.

      “ By section 31 the salaries and compensation of the persons employed as provided for in this act • * * * shall be paid by the comptroller of the city of New York on the certification of the said aqueduct commissioners or of such person or persons as may be designated by them. It is also provided that the various sums of money growing due from time to time under the terms of the several contracts made for the doing of the work and furnishing the material required by this act shall be paid by the comptroller, etc., on the certificate of the said aqueduct commissioners, or such person or persons as may be designated by them.
    “ By section 32 the comptroller is directed to raise from time to time, on bonds of said city, such sums of money as shall be sufficient to pay for any real estate and all damage, etc., * * * and also in paying for the construction of said aqueduct.
    “ By section 34 the mayor and comptroller are authorized to sign said- bonds, and it is made thé- duty of the clerk of the common council to countersign the same and affix thereto the seal of the said city.
    “ By section 39 the commissioners shall in every calendar month file in the office of the comptroller of the city of New York an account of all expenditures made by them or under their authority, and of all liabilities incurred by them during the preceding month, and an abstract of each such account shall be published in the City Record.

      “ By section 40 no person shall be appointed by the said aqueduct commissioners as inspector or superintendent who shall not be certified by at least three members of the commission to be competent, etc.; and by section 41 the commissioners are authorized to provide suitable offices, etc., * * * and to employ a secretary and all necessary clerks, messengers and employees, subject to the approval of the board of estimate and apportionment of the city of New York.
    “It is apparent from the provisions of the act-that the work confided to the aqueduct commissioners is a city work, and one in which the corporation has a direct corporate and pecuniary interest. It is also conceded that the corporation has accepted the appointments made by the act of 1883, and is proceeding to avail itself of the provisions in said act contained. This seems to me to bring the case within Appleton v. The Water Commissioners (2 Hill, 433), cited and approved by Church, C. J"., in His opinion in the New York and Brooklyn Baw-Mill and Lumber Company v. The City of Brooklyn (71 N. Y., 584). The case seems to be distinguishable from that of Maxmilian v. The Mayor (62 N. Y., 160), on the ground stated by Folger, J., in his opinion at page 170. It is hardly necessary to cite an authority to show that the work in question is a city work or purpose, but if it be necessary, the opinion of Earl, J., in The People ex rel. Murphy v. Kelly (76 N. Y., 487), is conclusive. The learned judge says: ‘It is impossible to define in a general way with entire accuracy what a city purpose is within the meaning of the Constitution. * * * It would not be a city purpose for the city of New York to build a railroad from that city to Philadelphia, or to improve the navigation of the Hudson river generally, between that city and Albany, although incidental benefits might flow to the city. Such works have never been regarded as within the legitimate scope of municipal government. On the contrary, it would be a city purpose to purchase a supply of water outside of the city and to convey it into the city, and for such a purpose a city debt could be created. S,o lands for a park for the health and comfort of the inhabitants of a city could be purchased outside of the city limits, yet conveniently near thereto.’
    “ See, also, the opinion of Judge Earl in Walsh v. Trustees of the New York and Brooklyn Bridge (96 N. Y., 437), in which it is held that the trustees of the bridge are the agents of the two cities; and see Ehrgott v. The Mayor, etc., of New York (96 N. Y., 274).
    “ On the whole case, I am of the opinion that the officers created and appointed by the act of 1883 are local officers; that the functions they are to perform are for the peculiar corporate and pecuniary benefit of the corporation of the city; that, under adjudicated cases, the corporation of the city of New York is liable for their acts ; that they are the agents of the city, and that the act expressly recognizes -the city’s liability upon their contracts. Such being the case, I do not see how it can be claimed that the appointees and employees of the aqueduct commissioners should be examined' by the State civil service commissioners as State officers, and not by the civil service boards of the city of New York as local city officers. If, as has been before shown, they are the agents of the city, they are not the agents of the State. The legislature have simply exercised in their appointment a power which, in the Metropolitan Police case, it was held they possessed, to appoint new local city officers, but the exercise of such power of appointment did not change the local character of the office or of the officer.
    “The case of Whitmore v. The Mayor, eto. (67 N. Y., 21), is mot in point. That case simply holds that clerks of the District Courts of the city of New York are not city but judicial officers, embraced within the judicial system of the 'State. The decision in that case only followed the case of Quin v. The Mayor, eta. (44 How. Pr., 266, and 53 N. Y., 627).
    “ It is contended by the corporation counsel that this proceeding is erroneously brought against nominal respondents, called the Civil Service Supervisory and Examining Boards of the City of New York; that there is no corporation bearing that name; that the civil service boards have no corporate existence, and that the proper respondents to be brought into court are the individuals who compose the boards.
    “I think the counsel is right in this position, but as I understand him to assent that there should be an amendment, by which the respondents can be properly designated, I shall direct such amendment to be made. Much stress is laid by the learned counsel in his brief upon the inconvenience which will result from a determination that the employees of the aqueduct commissioners are.subject to examination by the civil service boards of the city of New York. Such an argument cannot, of course, be taken into consideration, if the court regards it as plain that the appointees and employees of the commissioners are not exempt from such examination.
    “ I can discover nothing in the act which entirely exempts such appointees and employees from a civil service examination, and it appears that they have neither been examined by the State boards nor by the city boards. The provisions of section 40 in regard to a certificate by at least three members of the commission, as to competency and fitness, are confined to appointments of inspectors or superintendents. It is very doubtful whether, in the case of those appointees, the legislature intended that the certificate of the members of the commission should be in lieu of a civil service examination by tbe State board or by tbe city boards. It is not necessary for me to express an opinion upon that point, but the fact that a positive provision is made in regard to the certificate of qualification, to be obtained by certain appointees, is strong evidence that the legislature intended that all other appointees should be subject to the general laws of the State in reference to examinations as to qualifications.
    “ Let a mgndaimis issue in accordance with these views.”

      D. J. Dean, for the appellant.

      Frederick W. Whitridge, for the respondent.
   Daniels, J.:

The relator was desirous of securing employment as a cleric, copyist, recorder or book-keeper, by the aqueduct commissioners for the construction of the new aqueduct under chapter 490 of the Laws of 1883. This work was wholly authorized for the benefit of the city of New York, to increase its supply of water, and the commissioners selected for its prosecution, included the mayor, the comptroller, the commissioner of public works of the city of New York, and three other residents of the city. The property required for the enterprise was to be acquired by the city of New York, and the expenses of both the property and the work were to be provided for and paid by the city. The State at large had no special interest-whatever in the land to be obtained or the ends to be secured, but they were for the benefit, advantage and proprietorship of the city itself, and that was sufficient to constitute the persons who might be employed and engaged in it, officers, agents or employees of the city. They were, accordingly, within the description of persons required to be examined by the civil service commissioners, as that is contained in section 8 of chapter 410 of the Laws of 1884. For that section includes and requires to be examined all candidates, not afterwards excepted, for admission into the civil service of the city. The regulations to be adopted were directed to include the several clerks and persons employed, or being in the civil service of the city, subject to the exceptions already referred to, which does not include the case of the relator; and as he designed to seek employment from the aqueduct commissioners, and the business they were engaged in was that of the city itself, before he could be eligible to that employment his examination was required under this provision of the statute. For if he obtains the employment he sought, he will be in the civil service of the city itself. It is not necessary to inquire whether he will, in that manner, become an officer of the city, for this section of the statute is not restricted to that class of individuals, but it includes, generally, all clerks and persons in the civil service of the city. The employment he desired to obtain was a part of that civil service, and it was indispensable before he could obtain it, that an examination to ascertain his fitness, in respect to character, knowledge and ability, should take place. For these reasons, and those more at large assigned in the very full and complete opinion of Mr. Justice Lawrence, the writ of mandamus was lawfully directed to be issued at the suit of the relator, and the order from which the appeal has been taken should be affirmed, with costs.

Brady, P. J., concurred.

Order affirmed, with costs.