text:
    John Hart v. Denman Thompson et al.

    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    1. Making of contracts—What constitutes.
    Defendant, by letter, offered to employ plaintiff on specified terms. Plaintiff testified that in his reply, which had been lost, he accepted, the proposal, but his testimony was uncorroborated. Defendant testified that such acceptance was conditional, in which he was corroborated by evidence of other negotiations as to terms, and by a. letter from defendant rejecting a part of the conditions. That letter plaintiff never answered. Held, that no contract was made by the letters.
    3. Customs—Cancellation of contracts.
    Where the duration of plaintiff’s employment by defendant was not fixed by the contract, and plaintiff has introduced evidence of the customary duration of such contracts, defendant may show a custom of the business to cancel contracts on certain notice.
    3. Same—Contemporaneous construction of contract.
    Where the terms of a contract are disputed, evidence of conversations between the parties during the negotiations is competent as showing their contemporaneous construction of the contract.
    Appeal from judgment on report of referee.
    Action by John Hart against Denman Thompson and another for breach of a contract. There was a judgment in favor of plaintiff, and defendants appeal.
    John T. Easton, for appellants; Wm. Armstrong, for respondent.
   INGRAHAM, J.

—This action was brought to recover damages for a breach of a contract whereby the plaintiff was to perform certain work, labor, and services as a professional actor in a certain part or character, called Hiram Pepper,” in a drama, comedy, or play called “ The Two Sisters; ” “ that is to say, for a period of forty weeks, beginning August, 1888, at the agreed salary or compensation of seventy-five dollars, per week for each and every week ' during said theatrical season.” The answer of the defendants denies the making of the contract or agreement alleged, and alleges that on or about the 5th day of March, 1888, the plaintiff was engaged and employed by the defendants to render certain services in a certain play, known as “ The Two Sisters ”; that said engagement or agreement was for no definite period, but that the. same could be terminated by either party thereto on giving two weeks’ notice of his or their intention to do so; and that, the said notice was given in the middle of September, 1888j, whereupon the said contract became terminated and at an ■end.

The plaintiff, to prove his case, introduced three letters written by the defendant Ryer, with secondary evidence of the contents of the letters written by plaintiff in answer thereto; the original letters written by plaintiff not being .produced, evidence having been given tliat the same had been lost or destroyed. The making of the contract sued on depended upon the answer by plaintiff to the defendants’ letter of March 1, 1888. The contents of this letter were proved by the evidence of plaintiff. The substance of that answer was that I would accept the terms. He said in his letter that $75 was the limit, and, joking, I wrote that ‘ I would play the limit.’ I accepted the terms.” The plaintiff' further testified that he did not add any condition; and it is this letter written by plaintiff in answer to the defendants’ letter of March 1, 1888, which plaintiff alleges made the contract sued on, and which is alleged to be a contract for a specified time, viz. for a theatrical season, a period of 40 weeks, beginning in August, 1888. In looking through the letters which have been produced, or the testimony of the contents of letters not produced,' we look in vain for any. statement as to the period for which the plaintiff was to be employed. The first letter of defendant Ryer to plaintiff, dated February 20, 1888, was a proposition to the plaintiff to take part in a venture of the defendants’ in the production of a new play, which was to commence in August, in the neighborhood" of Hew York City. In that, Ryer proposed that the plaintiff should take part in the play, in substance asking what salary he would accept, and said that he would submit plaintiff’s proposition to Mr. Thompson, his co-defendant, and would then notify the plaintiff if it was satisfactory. In answer to that, the plaintiff wrote to defendant Ryer, and said that he (the plaintiff) would like to know what the part was, so he could understand it. There was no statement in this latter as to the term of the employment. It was simply a proposition to take part as an actor in the production of a play which the parties then intended to produce in the following August. The defendant Ryer wrote to plaintiff in answer to the request before mentioned, on March 1, 1888, giving certain extracts from the play, and stated: “ This piece is accepted, and will be produced at the Fourteenth Street Theater, Hew York City, on Hovember 12th, for a run; ” told the plaintiff that $75 a week was as far as they could go. That amount is our limit. Surely, a season at home is of some value to you. Think it over, and, if you accept, notify me at once, that I may chase away those that may seek ‘ Pepper.’ ” It was in answer to this letter that plaintiff swears that he sent thó communication to the defendants in which he said that he would accept the terms. The defendant Ryer contradicts the plaintiff as to the terms of the plaintiff’s reply to this letter of March 1st. Ryer says that plaintiff’s reply to that letter of March 1st was that he would play the limit provided I would pay his hotel bills and railroad fares; his salary provided I would add to it the railroad and hotel bills.” There is a sharp conflict of evidence as to this reply, plaintiff testifying that it was a mere acceptance of the terms theretofore proposed, the defendant testifying that it was a new proposal, which was to add to the salary of $75 a week plaintiff’s railroad fares and hotel bills.

The plaintiff also produced a letter from the defendant Ryer, dated March 5,1888, which contains this statement: ¡Railroad fares, yes; hotel bills, nay, nay. * * * $75.00 and railway fares.” To that letter it is not pretended that any reply was sent, and a question of fact was thus presented as to whether or not the plaintiff ever did accept, in writing, the defendant’s proposition to employ him at $75 a week and railroad fares,—whether, in fact, a contract was made by this correspondence between the parties. The terms of this last letter by defendant Ryer strongly .corroborate his testimony as to the fact that, at the time it was written, no contract had been finally made, but that the proposition of the defendant to plaintiff was met by a counter proposition of plaintiff to defendant that defendant would pay, in addition to $75 a week, the plaintiff’s railroad fares and hotel bills while traveling and engaged in the production of the play. Putting it, therefore, most strongly for plaintiff, a question of fact was presented to be determined as to whether or not any contract was made by this correspondence. The defendant having denied the receipt of the letter as testified to by plaintiff, and having testified that plaintiff’s letter contained a new proposition, and not an acceptance of the terms of the letter of March 1st, the defendant was asked as to what took place between the defendant and Mr. Hart in respect to engaging Mr. Hart to take part in “ The Two Sisters.” That was objected to as incompetent, and the objection sustained. To that defendants excepted. A series of questions was then asked the defendant as to what the final agreement was. Objections were made to most of these questions, which objections were sustained. The defendant, however, was finally allowed to testify that the plaintiff verbally acceded to the - terms of $75 a week and his railroad fares; and subsequently, on redirect examination, he was allowed to testify:

At last, we arranged matters that it should be for $75, his' railway fares, and two weeks’ notice to either side; that I could give him two week’s notice to quit, or he could give me' two weeks’ notice that he would quit. There were other conversations, of course, but I don’t follow them up. I don’t remember them.” 1

The testimony of the defendant as to the contract having been made verbally between the plaintiff and the defendant Ryer after the return of the plaintiff in March,. 1888, was corroborated by several witnesses as to interviews between plaintiff and Mr. Ryer at Mr. Ryer’s house.

We are inclined to think that the finding of the referee, upon this testimony, that any contract was finally made by these letters alone, is against the weight of evidence. It depends entirely upon the recollection of the plaintiff "as to the contents of a letter written several years before the 'trial. It is contradicted by the letter written by the defendant to the plaintiff, which the plaintiff produces; and from that it appears that the contract had not then been made, but that the letter of plaintiff in answer to defendant’s letter of March 1st contained a counter proposition that the defendant should pay, in addition to $75 a week salary, the plaintiff’s hotel bills and railroad fares. Thus, the testimony of the defendant Ryer, corroborated by the testimony of his wife and brother, as to negotiations in regard to terms after the plaintiff’s return, is in harmony with the letter that Ryer wrote to plaintiff, and which the plaintiff himself produced, while the plaintiff’s story as to the contents of his letter is entirely uncorroborated. He makes no attempt to explain the meaning of the letter of Ryer to him, dated March 5, 1888, which, in terms, is a refusal of the proposition made by plaintiff to pay the hotel bills. We think, therefore, that the finding of the referee that such a contract was made by this letter of the defendant, and accepted by the plaintiff, is against the weight of evidence, and that the judgment, for that reason, should be reversed.

In addition, we think that the referee erred in refusing to admit evidence of custom. The defendant called a witness, Erlanger, who was a theatrical manager, and familiar with the making of contracts in the theatrical profession. He was asked this question: “ In the making of contracts for the engagements of players to take parts in a new play, is there an established, well-understood custom or usage. providing that either party shall have the right to cancel the contracts on two weeks’ notice % ” This was objected to as irrelevant, incompetent, and immaterial. That objection was sustained, and defendants excepted. We think this evidence was competent. As before stated, in none of the letters is there any statement made as to the period for which the engagement Avas to run. The only phrase in any of the letters that referred to any season is contained in the letter of March 1st, in Avhich the clefendant says: “ If you take it, you will likely have as pleasant a season, or many of them, as you have eA^er had. That amount is our limit. Surely, a season at home is of some value to you.” The plaintiff Avas alloAved to testify that a regular theatrical season was understood to mean 40 or 41 Aveeks, and thus the plaintiff relied upon the custom in the theatrical business in Nbav York to make out any employment for any particular time. We think it Avas" entirely competent for the defendant to prove that there is a Avell established and understood custom or usage that either party should have a right to cancel such an agreement upon two weeks’ notice. As before stated, there was no express proposition to engage the plaintiff for any particular time. In neither of the letters does the defendant Eyer say that they will retain the plaintiff in the position offered to him for the season, or for 40 weeks, or for any other time. The defendant’s letter stated that the piece was accepted, and would be produced at the Fourteenth Street Theater for a run; but that, certainly, does not mean that the run would last for any particular number of weeks, nor could that be construed into a covenant that the plaintiff would be employed for this season in New York. In speaking of the engagement, the defendant subsequently says that, if he (the plaintiff) accepted this employment, he would likely have as pleasant a season, or many of them, as he had ever had, and that, surely, a season at home would be of some value to him. This language cannot be construed into meaning that the term of the employment, if accepted by plaintiff, would be for the whole season of 40 weeks. The most that could be said is that there was some ambiguity as to the time for which the employment was to last. That could be determined by the construction which had been given to the contract by the parties and the usages of the profession, and by such other evidence as would tend to show the intention of the parties. The usage of the profession in regard to the right to discharge upon notice an actor employed under the circumstances here detailed would be certainly most material to determine the intention of the parties at the time of the making of this contract.

There is one other question to which attention should be called. Hpon cross-examination of the plaintiff he was asked : “Had you any conversation with Mr. Eyer or with Mr. Thompson at any time in relation to the term of your engagement, or as to the conditions under which you were to be engaged?” That was objected to, on the ground that the conversation was merged in the letter from the defendant Eyer to Mr. Hart, which expressly described the terms of the employment ; and that objection was sustained, on the ground that an agreement was made out in the correspondence, and that, unless something happened subsequently to change its terms, the question was not proper. We think it was error to exclude that question. As before stated, the contemporaneous construction which was given to this proposal, if it was accepted by the plaintiff, would be most material in determining the term for which the plaintiff was employed, and any conversation between the plaintiff and the defendants at any time was material in this connection. In addition to that, the defendant had denied the making of the contract, and had alleged a subsequent contract, different in terms from that alleged by plaintiff, by which the defendant had the right to terminate the employment upon two weeks’ notice. The defendant had the right to cross-examine the plaintiff as to this new agreement, and, while it might be within the discretion of the-referee to refuse to allow such cross-examination at this stage-of the trial, the ruling of the referee was not placed upon that, ground, but upon the ground that an agreement had been made by the correspondence, and that it was incompetent to-cross-examine the plaintiff, upon whose testimony reliance was. placed to prove the correspondence. ‘ '

There are many other exceptions to rulings of the referee-upon questions of testimony. As there must be a new trial,, the same questions may not be presented again, and it is not. necessary that we should examine them.

The judgment should therefore be reversed, and a new trial ordered before another referee, with costs to the appellants to-abide the event.

All concur.


source: Caselaw Access Project

author: INGRAHAM, J. WILLIAMS, J.

license: Public Domain

text:
    Matter of Application of Directors of Murray Hill Bank.
    (No. 760.)

    (Supreme Court, Appellate Division, First Department.
    November 6, 1896.)
    1; Banks and banking!—Voluntary dissolution—List of creditors.
    The provision of Code Civ. Proo. § 2421, that the schedule annexed, to a petition for voluntary dissolution of a corporation shall show, as far as petitioners “ know or have the means of knowing,” the name ' and residence of each creditor, or, if either of these is unknown, a statement to that effect, is complied with where the schedule to such a petition by the directors of a bank, whose property is in the possession of the superintendent of banks, states that it contains the required matter so far as known, and that there are “ a number of other depositors whose names are unknown to petitioners,” and gives the aggregate-claims of all depositors.
    2. Same—Voluntary dissolution after superintendent of banks has taken possession.
    An order to show cause why a bank should not be dissolved, and" appointing a temporary receiver, maybe granted on application of the-directors, though the superintendent of banks has previously taken possession of the bank’s property and business under Laws 1892, c. 689, § 17 (Banking Act), as such statute authorizes him only to hold the property, and not to manage the bank’s concerns, or act for it in any way; and does not divest the directors of their powers except so far as is necessary to preserve the property pending an application in the name of the people for a receiver. Williams, J., dissenting.
    Appeal from special term, New York Oounty.
    Application by a majority of the directors of the Murray Hill Bank for a voluntary dissolution of said bank. From an order directing all persons interested in the bank to show cause before a referee why the bank should not be dissolved, and that the order to show cause be published, and appointing Spencer Trask and Miles M. O’Brien temporary receivers of the property, assets, and effects of the banks, directing them to give security, and then to take possession of the property of the bank, and collect and receive the debts, demands, and ■other property of the bank, the attorney general and the superintendent of banks appeal.
    T. E. Hancock, Atty. Gen. (W. E. Kisselburgh, Jr., Dep. Atty. Gen., of counsel), for appellants; Samuel Untermyer and James M. Smith (Louis Marshall, of counsel), for respondents.
   INGRAHAM, J.

—This ivas a special proceeding commenced under section 2419 of the Code of Civil Procedure for a voluntary dissolution of the Murray Hill Bank. A petition for such voluntary dissolution was presented to the court on the 28th day of August, 1896, and an order was then granted requiring the attorney general to show cause on the 1st day of September why an order should not be made as provided for by section 2423 of the Code, and why a • temporary receiver of the property of the corporation should not be appointed. Due service of a copy of the order to show cause, with the petition and schedules, was admitted by the attorney general, who appeared upon the return day of the order to snow cause in opposition to the motion. An affidavit was presented on behalf of the attorney general by the superintendent of banks and his deputy, from which it appeared that in pursuance of section II of the banking act the superintendent of banks took possession of the Murray Hill Bank and its property and business on the 11th day of August, 1896, and that he still retains possession of the same. Upon the return day of such order the court granted the motion, appointed a referee, before whom all persons interested ivere required to show cause why the corporation, the Murray Hill Bank, should not be dissolved, appointed two receivers of the property, assets, and effects of the corporation, directed the said receivers to take possession of the property of the bank, collect and receive the debts, demands, and other property of the corporation, to preserve the same and the proceeds thereof, and to collect and receive all demands owing to said bank, with full power to maintain any action, suit, or special proceeding for either or all of said purEoses without further leave, and enjoin the creditors and stockolders of said corporation from instituting or prosecuting any action or proceeding against the corporation. From this order the attorney general has appealed.

The right of thea attorney general to appeal from such an order without being' made a party to the proceeding is conceded by counsel for the respondents; and, while the question is not free from doubt, it being somewhat difficult to see how a substantial right of the people is affected by the court’s administering the property of this insolvent corporation in a proceeding for a voluntary dissolution of the corporation rather than in an action brought by the attorney general in the name of the people to accomplish the same purpose, we will assume that the order is appealable. The attorney general presents two grounds for a reversal of this order. The first is that the petition and schedules on which the order to show cause why the corporation should not be dissolved and a temporary receiver thereof appointed were insufficient to confer jurisdiction upon the court, upon the ground that a full list of the creditors of the corporation was not presented to the court, as required by section 2421 of the Code. The petition stated that annexed thereto is a schedule containing the name and place of residence of each creditor and of each person with whom such an engagement was made, and to whom it is to be performed, if known, or, if either is not known, a statement of that fact, as far as the petitioners know or have the means of knowing the same, in view of the facts that the books of the corporation are not at present in their possession or under their control, but are in the possession of the state superintendent of banks. And the schedule annexed to the petition states that it is a full and true account of all the creditors of the corporation and all unsatisfied engagements, with the name and place of residence of each creditor, and of each person with whom such an engagement was made, and to whom it was to be performed, if known, or, if either was not known, a statement of that fact, with a statement of the sum owing to each creditor, or other person specified, and the nature of each debt, demand, or other engagement; and at the end of such-schedule there is a statement as follows : “ A number of other depositors whose names are unknown to petitioners; the aggregate claims of all depositors named and not named amounting to about $1,031,000,” We think that this was sufficient to give the court jurisdiction. Section 2421 of the Code provides : “ A schedule must be annexed to the petition, containing the following matters, as far as the petitioner or petitioners-know, or have the means of knowing the same.” There is nothing to show that this schedule did not contain the name and place of residence of each creditor so far as the petitioners knew or had the means of knowing the same. On the contrary, the petitioners expressly state that such schedule does comply with this provision. In Re Santa Eulalia Silver Min. Co. (Sup.), 4 N. Y. Supp. 174, it was held that, if a technical and accidental omission in the schedules of some item of property, or some other omission to comply with the section of the Code, does not show a lack of good faith on the part of the petitioner, or afford evidence of any fraudulent purpose, or any attempt to impose upon the court, the objection does not go to the jurisdiction of the court, and may be obviated by evidence. That case was affirmed by the court of appeals upon this opinion. See 115 N. Y. 657, 23 S. R. 1000. We think this decision disposes of this objection

The attorney general also claims that the directors were not authorized to apply for a voluntary dissolution, as the fact that the superintendent of banks, in taking possession of the bank’s property and business under section 17 of the banking law, took from the directors the property of the bank, so that they were no longer in the management of the concerns of the corporation. The mere possession of the property and business of the bank, however, by the superintendent, under this provision of the statute, did not divest the trustees or directors of the management of the concerns of the corporation, except so far as was necessary to preserve the property of the corporation pending an application to the court to appoint a receiver. The directors were still the responsible officers of the bank, liable for the faithful performance of their duties as such directors, and the only ones who could act for the corporation. Nothing in the act itself or any provision of law divested them of their office, or removed them from the position held by them. They were still the directors of the bank, and as such had the management of the concerns of the corporation. The corporation exists until the final judgment is entered dissolving it, and they were the only persons who could act for the corporation and manage its concerns. No provision of the statute authorizes the superintendent of banks to act for the corporation. He simply had power to take possession of the bank’s property and business ; not to manage its concerns, or act in any way for the bank. The provisions of the Code for voluntary dissolution of a corporation apply to all corporations created by or under the laws of the state, and no exception from the operation of such provisions is made of a banking corporation, the property and business of which have been taken possession of by the superintendent of banks. These provisions plainly include a banking corporation. And by section 2423 of the Code the court is authorized, in its discretion, at any stage in the proceeding, on motion of the petitioners on notice to the attorney general, or on motion of the attorney general on notice to the corporation, to appoint a temporary receiver of the property of the corporation. We think it clear that under this provision of the Code the court had jurisdiction to entertain the application, grant the order to show cause why the corporation should not be dissolved, and to appoint a temporary receiver of the property of the corporation. There certainly was no reason shown by the attorney general in opposition to the motion why that power should not be exercised. It is conceded that the bank was insolvent, and that the interests of its creditors and stockholders require that it should be wound up. No action by the people had been commenced ; no other application for the appointment of a receiver was pending ; and the only objection of the attorney general seems to be that he wished the receiver to be appointed in an action which he expected to bring, rather than in a proceeding brought by the directors of the bank. Our attention is called to no reason which would prevent this corporation from being wound up as advantageously to its creditors and stockholders in this proceeding as in one "instituted by the attorney general in behalf of the people, nor do the public interests appear to be at all involved. An order has been regularly entered in complianee with the provisions of law, by which the property of this corporation is vested in officers of the court for the benefit of its creditors and stockholders; and their interests seem to be seriously imperiled by the institution of an unnecessary proceeding by the attorney general, out of which appears to have arisen an unseemly dispute between him and the officers of this bank as to the method of procedure by which this corporation is to be dissolved, and its property applied to the payment of its debts. This should not be encouraged._ It is the duty of the court to protect the interests of the creditors of an insolvent corporation, and not to allow its assets to be wasted through a dispute between receivers appointed in different .actions, or a dispute as to which particular course of procedure .should be adopted, the sole object of which is the protection of creditors. As before stated, no suggestion has been made from which it' appears that the creditors .can be any better protected in an action brought by the' attorney general than in the proceeding now before the court. No suggestion, is made that the public interests in any way require that we should refuse to entertain this application because at some future time the attorney general might commence an action to dissolve the corporation. The court having jurisdiction of the proceeding, the interests of the creditors of this insolvent corporation require that it should promptly act; and its action under such circumstances was in all respects valid and proper in the orderly exercise of such jurisdiction.

We think the order was right, and should be affirmed, with ' $10 costs and disbursements.

YAN BRUNT, P. J., and PATTERSON and O’BRIEN, JJ., concur,

WILLIAMS, J.

(dissenting).—The facts are undisputed, and are as follows: August 11, 1896, the bank superintendent, having examined the affairs of the bank, arrived at the conclusion not only that there had been an impairment of the capital, and that the bank was in an unsound and unsafe condition to do banking business, but that it was insolvent, its liabilities exceeding its assets by more than $230,000, and it had closed its doors, and suspended its ordinary and lawful business. Thereupon the bank superintendent on that day took possession of the property and business of the bank, under the provisions of section 17, c. 689, of the banking act of 1892. Thereafter, and on the 28th of August, 1896, the directors instituted proceedings for the voluntary dissolution of the bank, under the provision of section 2419 et seq., Code Civ. Proc. A petition was' made by the majority of the directors, and upon such petition and accompanying papers an order was made by a justice of the court on that day, directing the attorney general of the state to show cause September 1, 1896, at a special term in New York City, why the usual order should not be granted requiring all persons interested in the bank to show cause why the bank should not be dissolved, and why a temporary receiver should not be appointed, and directing the order to show cause to be served upon the attorney general on or before August 29, 1896. August 31, 1896, the attorney general prepared a summons and complaint, and had the latter verified in an action in the name of the people against the bank, to procure the dissolution, and the appointment of a receiver. On the return of the order to show cause, September 1, 1896, the matter was heard at special term in Hew York City, Mr. Justice Pryor presiding. The attorney general objected to the making of any order in the proceedings, and especially to the appointment of any receiver, by reason of the bank superintendent having taken possession of the books, papers, and •assets of the bank, under the provisions of section 17 of the banking act. The court, however, made an order September 2, 1896, from which order this appeal is taken. The statute under which the bank superintendent took possession of the property (Banking Act .1892, § 17) provides that the bank superintendent may take possession of the property, and retain such possession until the termination of the action or proceedings instituted by the attorney general, such as are authorized in the case of insolvent corporations. Discretion was, then, clearly given to the bank superintendent, which he had the right to exercise, and which the court had no power to deprive him of. The banking act is an act relating solely to banks, while the provisions of the Code of Civil Procedure relate generally to all corporations, and provide proceedings for their voluntary dissolution. The banking act was the later expression of the legislative will, and it provides a scheme especially for the care of banks. So far as its provisions are inconsistent or conflict with the general provisions of the Code, the latter provisions must be held to be modified, and must give way. 'Clearly, the scheme of section 17 was to give the bank superintendent, in his discretion, the custody and control of the property of a bank ¡lending proceedings by action or otherwise instituted by the attorney general, He exercised the discretion, and took possession of this property, and had them in his custody when the proceedings for voluntary dissolution were commenced. 'The directors of the bank apparently conceived the idea of influencing the closing up of the bank and taking the property away from the bank superintendent, and they sought to make use of the proceedings for voluntary dissolution to accomplish their purpose. It seems to me they could not accomplish their purpose by any such means. While the provisions of the Code .as to the voluntary dissolution of corporations very likely apply to banks as well as other corporations, still they must give way in the case of banks to these provisions of the banking law which are inconsistent or in conflict with them. It may be doubtful if the proceedings for voluntary dissolution ,could be instituted at' all, under the provisions of the Code, after the property and business of the bank had been taken possession of and were held by the bank superintendent; the provision being “ that a majority of the directors, trustees, and other officers having the management of the concerns of a corporation may make a petition,” etc. But, even if they could be, still the court had no power in such proceedings to appoint-receivers, or compel the delivery of1 the property and assets of the bank to such receivers, without the consent of the bank superintendent. The banking law confers the power upon the bank superintendent to determine whether he should hold the property to await the determination of the proceedings instituted by the attorney general, and the court could not, in these proceedings, interfere with the custody and control of the property by the bank superintendent without his consent. The bank superintendent was regarded by the legislature as more competent, from his position and knowledge of banking matters, to determine this question, than the court; and the clear design of the banking act was to leave this question to him, and not.to the court.

For these reasons I am of the opinion that the order appealed from should be reversed, with costs, and the motion denied, with costs; or that the order appealed from should be modified by striking out all provisions as to the receivers, and, as modified, affirmed, without costs.


text:
    Matter of Application for Dissolution by Directors of Murray Hill Bank.
    (No. 756.)
    (Supreme Court, Appellate' Division, First Department.
    Nov. 6, 1896.).
    Receivers—Delivery of property to.
    One who has, by order of court, delivered property of a corporation to receivers, will not be afterwards ordered to deliver it to other receivers appointed in a different action.
    Appeal from special term, New York County.
    Application by a majority of the directors of the Murray Hill Bank for a voluntary dissolution of said bank. From an order denying a motion by Spencer Trask and Miles M. O’Brien, temporary receivers of said bank, theretofore appointed, to compel the superintendent of banks to deliver to them the books, papers, and assets of the bank, or for a peremptory writ of mandamus to compel such delivery, and to restrain the superintendent from turning such books, papers, and assets over' to any other person, the receivers appeal.
    Saml. Untermyer and Louis Marshall, for appellants; T. E. Hancock, Atty. Gen., and W. E. Kisselburgh, Jr., Dep. Atty. Gen., for respondents.
   INGRAHAM, J.

—We do not concur in the opinion of Mr. Justice Williams. We do not think, however, that it is necessary on this appeal to pass upon the questions discussed by him, as this order must be affirmed upon the ground that it appeared on the motion that, prior to the time the motion was argued, the superintendent of banks had turned over to certain receivers appointed in another action all the property, assets, and books of the bank then in his possession; and that he was no longer in possession of such property. The motion which resulted in the order appealed from was to compel him to turn over to the receivers appointed in this action all the books, papers, and assets of the bank, or to show cause why a permanent mandamus should not issue against him directing him to deliver possession thereof to the receivers. It appearing that he had not then in his possession any of the property in question, an order directing him to turn over such property would be ineffectual.

The order is therefore affirmed, with $10 costs and disbursements.

YAM BRIHSTT, P. J., and O’BRIEH and PATTERS OH, JJ., concur.

WILLIAMS, J.

—The vfacts are undisputed, and are as follows : August 11, 1896, the bank superintendent, having examined the affairs of the bank, arrived at the conclusion not only that there had been an impairment of the capital, and that the bank was in an unsafe and unsound condition to do banking business, but that it ivas insolvent, its liabilities exceeding its assets by more than $230,000, and it had closed its doors, and suspended its ordinary and lawful business. Thereupon the bank superintendent on that day took possession of the property and business of the bank, under the provision of section II, c. 689, of the banking act of 1892. Thereafter, and on the 28th of August, 1896, the directors instituted proceedings for the voluntary dissolution of the bank, under the provisions of section 2419 et. seq., Code Civ. Proc. A petition was made by a majority of the directors, and upon such petition and accompanying papers an order was made by a justice of the court on that day, directing the attorney general of the state to show cause, September 1, 1896, at a special term in Hew York City, Avky the usual order should not be granted, requiring all persons interested in the bank to shoAV cause Avhy the bank should not be dissolved, and why a temporary receiver should not be appointed, and directing the order to shoAV cause to be served upon the attorney general on or before August 29, 1896. August 31,1896, the attorney general prejiared a summons and complaint, and had the latter verified in an action in the name of the people, against the bank to procure its dissolution, and the appointment of a receiver. On the return of the order to shoAV cause, September 1, 1896, the matter Avas heard at special term, Hew York City, Mr. Justice Pryor, presiding. The attorney general objected to the making of an order in the proceedings, and especially to the appointment of any receiver by reason of the bank superintendent having taken possession of the books, papers, and assets of the bank, under the provision of section 17 of the banking act. 'The court, however,made an order Septembers, 1896, containing the usual provisions, and appointing the appellants receivers of the bank, providing for security, and directing the receivers so appointed to take possession of the property of the bank, to collect the debts, demands, and other property of "the bank, etc. September 3, 1896, copies of this o,rder and of the receivers’ bonds, which had been executed and approved and filed, were served upon the attorney general, and the receivers made efforts soon thereafter to induce the bank superintendent to surrender and deliver to them the books, papers, and assets of the bank. The bank superintendent, however, ■declined to make such delivery. September 4, 1896, the attorney general caused the papers prepared August 31, 1896, to be served, thus commencing the action in the name of the people against the bank to procure its dissolution, and the appointment of a receiver. September 10, 1896, upon the summons and complaint and an affidavit of the bank superintendent an order was made by a justice of the court, requiring the bank to show cause at a special term in city of ¡Newburgh, September 12, 1896, why an order should not be made appointing a receiver of the property and the assets of the bank during the pendency of the action, and restraining defendant and its officers, agents, and servants from exercising any corporate rights during the pendency of the action, and from transferring, disposing of, or interfering with the property or assets of the bank, and enjoining or restraining suits or proceedings against the bank, and restraining the defendant and its trustees, agents, and servants until the hearing of the motion, and directing serxdce of the order to show cause on the defendant or its attorney on or before September 11, 1896. The service of this order xvas made as directed, and at the same time the attorney general and the bank superintendent appealed from Mr. Justice Pryor’s order to the appellate division, First department. In re Directors of Murray Hill Bank, 41 N. Y. Supp. 914. On September 12,1896, upon the return of the order to show cause, the matter came before the special term in the city of ¡New-burgh, Mr. Justice Dickey presiding. After hearing argument the court took the papers, and, thereafter, on September 17, 1896, made the order asked for by the attorney general; among other things appointing receivers, and directing them to take possession of the books, papers, and assets of the bank,, and directing the bank superintendent to turn the same over to the receivers. The receivers qualified by giving the bonds required of them the same day, September 17, 1896, and the bank superintendent thereupon forthwith turned over to the receivers so appointed the books, papers, and assets of the bank, as directed by the order of Mr. Justice Dickey, and such receivers have since had the sole possession thereof. In the meantime, and on September, 14,1896, two days after the hearing before Mr. Justice Dickey, and before his order was made, the appellants procured from a justice of the court an order requiring the bank superintendent and the attorney general to show, cause at a special term in Mew York Oity, September 18,1896, why the bank superintendent should not be compelled forthwith to deliver to the appellants the books, papers, and assets of the bank, or' why a peremptory writ of mandamus should' not issue against him, directing him to so deliver the books, papers, and assets, and why he should not be restrained from turning them over to any other person, and requiring service of the order on or before September 16,1896. This prderwas duly served, and on the return day thereof the matter-came on at special term in Mew York City, Mr. Justice 'Truax presiding. September 25, 1896, the order was made denying this motion, and from such order this appeal is taken.

The ground upon which the learned justice denied the motion was that the court had no power to grant the motion, under the explicit language of section 1313, Code Civ. Proc. In a brief memorandum made by the learned justice he says: “The execution of the order made by Mr. Justice Pryor is stayed by the service of the notice of appeal therefrom, and therefore the motion to direct the superintendent of banks forthwith to deliver possession to the receivers named in such order must be denied.”

It seems to me there were several good reasons for denying the motion made by the appellants.

1. The reason given by Mr. Justice Truax was sufficient in itself. The language of section 1313 of the Code is explicit, and there can be no doubt the effect of the service of the notice of appeal by the attorney general perfected the appeal from, and, stayed the execution of, the order made by Mr. Justice Pryor,' This principle was held and this construction given to section,' 1314, of similar import to section 1313, by the general term," First department, in People v. Daly, 75 Hun, 186, 27 N. Y. Supp. 283. That was an appeal from an order denying the', relator’s motion to compel the defendant to issue certain, permits required by a peremptory writ of mandamus. An appeal had been taken by the defendant from the order granting the writ of mandamus, to the general term, and pending" such appeal the motion was made resulting in the order from; which this appeal was taken. , This motion was denied upon' the ground that this appeal operated to stay the proceedings under the writ. The general term held the motion was prop-" erly denied, upon the ground stated by the court making the" order ; Van Brunt, P. J., and Follett and Parker, JJ., sitting. The order was therefore affirmed, with costs. If the execution" of the order made by Mr. Justice Pryor was stayed, then'it, was manifestly improper to grant the motion made by. the appellants. The effect of that order, so far as the receivers themselves were concerned, their appointment, and the vesting of title to the property in them, was, by the stay, held in abeyance,—was undetermined; the order was liable to be reversed on appeal. But certainly the provision directing them to take possession of the property of the bank was stayed. It could not be executed by their taking such possession; and it would certainly be improper, under these circumstances, for the court, on another motion, to direct the bank superintendent to deliver to the receivers property which they had no right to receive under the order appointing them such receivers.

2. The motion should not have been granted, because it was not within the power of the bank superintendent to comply with the order or obey the writ of peremptory mandamus, if made or granted, to deliver the property to the appellants. The bank superintendent had already delivered and tuyned over the property to other receivers appointed by the court in the action brought by the attorney general in the name of the people, and he was compelled to so turn over and deliver the property under and by the express provisions of the order of the court, which he could not disobey so long as the order remained in force. The order made by Hr. Justice Dickey was upon a motion where both parties to the action were heard. It was not a void order. The court had jurisdiction in the premises. The order could only be disposed of on appeal, or by motion to vacate or to modify it, and it does not appear that any such remedy has ever been taken. It would be strange if the court, having expressly ordered the bank superintendent to turn over and deliver the property of the bank to one set of receivers appointed by it, the same court, though not held by the same justice, or in the same county or department (in face of its former order, and proof that its direction had been obeyed by the bank superintendent by turning over and delivering the property, and that such property had entirely passed from his custody and control), should make another order, or issue its peremptory writ of mandamus, to compel the bank superintendent to deliver the same property to other receivers appointed by the court in other proceedings. The only remedy the appellants had was to appeal from the order made by Hr. Justice Dickey, or move to vacate or modify it; and, when successful in disposing of that order, the court could then reach the property in the hands of the receivers having its custody, and procure its delivery to the appellants, if it should be determined they were entitled to it.

3. The motion was properly denied, for the reason that the court had no power to compel the bank superintendent to surrender the property to the appellants. The statute under which the bank superintendent took possession of the property (Banking Act 1892, § 17) provides that the bank superintendent may take possession of the property, and retain such possession until the termination of the action or proceedings instituted by the attorney general, such as are authorized in the case of insolvent corporations. Discretion was thus clearly given to the bank superintendent, which he had the right to exercise, and which the court had no power to deprive him of. The banking act is an act relating^ solely to banks, while the provisions of the Code of Civil Procedure relate generally to all corporations, and provide proceedings for their voluntary dissolution. The banking act was the later expression of the legislative will, and it provides a scheme especially for the care of banks. So far as its provisions are inconsistent or conflict with the general provisions of the Code, the latter provisions must be held to be modified, and must give way. Clearly, the scheme of section 1Y was to give the bank superintendent, in his discretion, the custody and control of the property of a bank pending the proceedings by action or otherwise instituted by the attorney general. He exercised the discretion, and took possession of this property. And the attorney general with sufficient promptness instituted proceedings by action against the bank to procure its dissolution (by reason not only •of impairment of its capital but gross insolvency), and the proper distribution of its assets among the creditors entitled to the same. The directors of the bank apparently conceived the idea of influencing the closing up of the bank and taking the property -away from the bank superintendent, and they sought to make use of the proceedings for voluntary dissolution to accomplish their purpose. It seems to me they could not accomplish their purpose by any such means. While the provisions of the Code as to the voluntary dissolution of corporations very likely apply to banks as well as other corporations, still they must give way in the case of banks to those provisions of the banking law, which are inconsistent or in conflict with them. It may be doubtful if the proceedings for voluntary dissolution could be instituted at a-11 under the provisions of the Code, after the property and business of the bank had been taken possession of and were held by the bank superintendent; the provision being that a majority of the directors, trustees, or other officers, having the management of the concerns of a corporation, * * * may make a petition,” etc. Code Civ. Proc. § 2419); but, even if they could be, still the court had no power in such proceedings to appoint receivers, or compel the delivery of the property and assets of the bank to such receivers, without the consent of the bank superintendent. The banking law conferred the power upon the bank superintendent to determine whether he should hold the property to await the determination of the proceedings instituted by the attorney general, and the court could not, in these proceedings, interfere with the custody and control of the property by the bank superintendent, without his consent. The bank superintendent was regarded by the legislature as more competent, from his position and knowledge of banking matters, to determine this question than the court, and the • clear design of the banking act was to leave this question to.him, and not to the court.

For these three reasons I am of the opinion the order-appealed from was properly made, and should Be affirmed-,, with costs.


author: INGRAHAM, J.

text:
    Annie Smith v. Prudential Ins. Co. of America.
    (Supreme Court, Appellate Division, First Department.
    November 13, 1896.)
    Insurance—Description of occupation.
    It is not a false description of occupation, in an. application for life ■ insurance, to call one having charge of a gang, of laborers an “in- - spector. ”
    Appeal from trial term, New York County.
    Actions by Annie Smith, as administratrix of Peter Smith,, deceased, against the Prudential Insurance Company of America, to recover $1,000, the amount of a policy issued by defendant on the life of said Peter Smith. From a: judgment entered on a verdict in favor of plaintiff, and from an order - denying a motion for a new trial, defendant appeals.
    Wm. C. Campbell, for appellant; Christopher Fine, for respondent.
   INGRAHAM, J.

-—The action was brought upon a policy of life insurance whereby the defendant insured the life of one - Peter Smith in the sum of $1,000, payable at' his- death to his • executors, administrators, and assigns. Peter Smith died intestate on the 3d of November, 1894. The defendant sets up several defenses in its answer, but the only- ones upon which it sought to defeat the plaintiff’s claim was- that the policy' was issued upon the application of some person, to defendant unknown, whom the defendant then believed to be Peter Smith, but who was not Peter Smith; that such policy was issued upon a medical examination of such unknown person, who declared himself to be Peter Smith, when in fact he was some other person; and, further, that there- was a breach of the warranty upon which such policy was- granted.

There was evidence upon the trial which tended to show that the Peter Smith who was examined by the medical examiners of the defendant, upon which examination this policy was issued, was not the plaintiff’s intestate,—-the Peter Smith upon whose death plaintiff demands payment of the policy. That question, however, was submitted to-the-jury, the defendant taking no objection or exception to-the- charge, and making no request to charge except one which was charged by the court; and, the jury having found that" the person examined by the physician of the defendant companyas the applicant for the insurance was Peter Smith;.the- deceased, and the-husband of the plaintiff, we should not disturb that verdict, as from an examination of the testimony it is clear that the verdict is supported by the evidence.

The other question as to whether or not there was a breach of the warranty, was also submitted to the jury, the learned judge charging:

“The question, therefore, to be determined by you, is whether the answers to the defendant company were true or not true. If any of them was untrue, your verdict must be for the defendant. If they were all true, and the deceased was the real" party examined by the defendant company, the plaintiff is entitled to a verdict at your hands for $1,000, with interest. ' .

The only breach of warranty that is insisted upon on this appeal is that, in the application, the assured is called an inspector, while in the claimant’s certificate and the attending physician’s certificate, included among the proofs of death furnished to the company, he is described as a laborer. It appeared by the evidence that, at the time of the application for the policy, the deceased worked on the Croton waterworks, having charge of a gang of men working on the Croton water-pipes. We do not think that to describe a man engaged in such an occupation as an inspector is a false description of his occupation.

As to the other representations which are claimed by the defendant to be false, it is sufficient to say that the verdict of the jury is amply sustained by the evidence. The burden is on the defendant of showing that such representations, or some of them, were false, and it has not sustained that burden.

Upon the whole case, we think no error was committed which requires us to reverse the judgment, and that the verdict of the jury was sustained by the evidence. The judgment is affirmed, with costs.

All concur.


text:
    Kate Pendergast v. Union Ry. Co. of New York City.
    (Supreme Court, Appellate Division, First Department.
    Nov. 13, 1896.)
    1. Carriers op passengers—Negligence—Limitation op liability.
    The fact that a foreman of a street-oar company had at previous times notified an employe, when giving him a pass, that “ that he had to ride at his own risk, and that the company-was entirely blameless,” is not notice to the employe of a claim by the company of exemption from liability on all subsequent occasions on which he used the cars without pay.
    8. Master and servant—Fellow servant—Negligence.
    A laborer employed by a street-railway company, when returning home after a day’s work, free of charge, on one of the company’s cars, is not a fellow servant of the conductor, so as to preclude recovery for injuries received by falling through a gate on the car, left unsecured by .the conductor’s negligence.

      B. Same—Evidence.
    A finding of negligence is sustained by evidence that the conductor saw that a gate on a street car was so bent that it could not be bolted, and that he neglected to tie or secure it, and that it flew open, and precipitated a passenger into the street.
    4. Same—Standing on platform of car.
    It is not, as a matter of law, contributory negligence to stand on the back platform of a street car when all the seats in the car are filled.
    Appeal from trial term, New York County.
    Action by Kate Pendergast, as administratrix .of ThomasPendergast, deceased, against the Union Railway Company of New York City, to recover damages for the death of decedent, who was plaintiff’s husband. From a judgment for $4,250 damages, and $548.95 interest from the time of decedent’s death, and $378.05' costs, and from an order denying a motion for a new trial, defendant appeals.
    William M. Cohen, for appellant; G. Washbourne, for respondent.
   INGRAHAM, J.

—The plaintiff’s intestate was in the employ of the defendant, as a laborer on its railroad, on the 13th of January, 1894. When his work for the day was finished, he got on one of the defendant’s cars, with several of his fellow workmen to be transported home. The foremen of' the men made out a pass for eight men, and gave it to the> conductor. r There is no evidence that plaintiff’s intestate knew that such pass had been presented to the conductor by Hogan, or that he was at all a party to the transaction. It-may, however, be assumed that plaintiff’s intestate understood that the railroad would carry him from his place of work to-his residence, but that is the extent to which we are justified in assuming that plaintiff’s intestate had any knowledge of the pass in question. Shortly after the car started, the plaintiff’s intestate was thrown off ; the evidence being that a gate near which plaintiff’s intestate was standing was out of order,—so bent that it was impossible to securely fasten it in place,-—and that it was in consequence of this insecurely fastened gate giving way that plaintiff’s intestate fell. He received injuries which resulted in his death, and this action is brought to recover the damages sustained ,by his next of kin in consequence-thereof.

Several defenses were interposed by the defendant. The first one that requires notice is that the plaintiff’s intestate was-riding upon a free pass, under a special contract between himself and the railroad company or its agents; upon such pass, he waived all right of action against the railroad company in case of injury. We think, however, that the evidence was insufficient to establish that any such contract or understanding between the railroad company and the plaintiff’s intestate was made. The proof of such a contract depends solely upon the testimony of ITogan, the foreman, who swears that at former'times, when he had given a pass to plaintiff’s intestate, he had informed him “ that he had to ride at his own risk; that the company ivas entirely blameless.” Hogan expressly testified that he did not give to the plaintiff’s intestate a pass on the day in question, and that no statement was there made to the plaintiff’s intestate as to what effect riding upon such a pass as he gave the conductor would have. He only testifies that, on prior occasions when he gave to him (plaintiff’s intestate) a pass, he made this statement. Whatever effect this would have upon the liability of the defendant for any injury that resulted, or which was occasioned, to the recipient of the pass, upon the ride on which the pass was used, certainly it could not be held to extend to all subsequent occasions upon which plaintiff’s intestate used the road. Contracts by wnich common carriers seek to exempt themselves from liability for the result of negligence on the part of their agents have been enforced only in case of proof that a contract was made, for a good consideration, between the carrier and the passenger, by which it was intended that the carrier should escape the result of its negligence. And it would be going greatly beyond the principles established in any reported case to which our attention has been called, or with which we are familiar, to hold that a conversation relating to the giving of a prior pass upon a road would relieve a carrier from all future acts of negligence in relation to the same passenger. As we think that there was no evidence here that would justify a finding of the jury that such a contract between the plaintiff’s intestate and the defendant, as to the effect of his riding upon a pass on the night in question, was made, it is not material to examine the objections taken by the defendant to the admission of evidence as to this pass in question, or as to the terms and conditions upon which ether passes had been issued by the railroad company.

The defendant also claims that the negligence of the defendant in regard to the proper fastening of this gate was the negligence of the conductor; that, the plaintiff’s intestate being in the employ of the railroad company, the conductor ivas a fellow servant; and that the negligence ivas therefore that of a fellow servant with the person injured, and for that the defendant is not liable. It appears, however, from the testimony of Hogan, that, at the time that Pendergast got upon this car to go home, he had finished his day’s work; that at the time he was on his way home from work. Assuming, without deciding, that plaintiff’s intestate was, notwithstanding that he had finished his day’s work, still in the employ of the defendant, and that he was with the conductor, a fellow workman, it was clearly the duty of the railroad company to furnish him Avith a safe and proper place to do his Avork, or to ride to and from his work, if they assumed so to convey him. That was clearly a duty that the railroad owed to plaintiff’s intestate, and for a neglect properly to perform that duty the defendant would be liable. By its rules it has expressly made it the duty of the conductors of its cars to see to it that each gate is securely fastened, before starting the cars. It thus created these conductors its agents in performing this -duty that it owed to its passengers,—as well to those in its employ as to those who were not,—to provide a suitable and safe car in which to carry them to their destination. A neglect by its conductor to perform that duty would.clearly not be the neglect of a fellow workman with the plaintiff’s intestate, as the conductor was acting as the agent or representative of the corporation to perform -the express duty which it owed to plaintiff’s intestate. Ilis neglect to perform such duty was the neglect of the com-pany to perform the duty which it owed to the plaintiff’s intestate, and not an act of negligence on the part of the conductor in the performance of the work of the corporation in which plaintiff’s intestate was engaged, as the plaintiff’s intestate and the conductor were not fellow workmen in doing this particular work, or performing this particular duty, the neglectful performance of which occasioned the injury. This principle is too well settled to require the citation of authority, and it seems to us clear that in no sense could the neglect of this conductor to comply with the rules of the company, throwing upon him the duty of seeing that each gate is securely fastened before starting their cars, be considered the neglect of a fellow workman with plaintiff’s intestate. Where two persons are engaged in the performance of a common work for a master, and one of .them is negligent in the performance of that work, and thus occasions injury to another workman engaged in the performance of the same work, the master is not liable; but where the duty is upon the master to furnish a proper and safe place for an employe to work, and to furnish him with proper tools to do the work required by him, and he delegates that duty to another, it is entirely clear that such other, in the performace of the delegated duty, is not a fellow workman with one who is injured because of the failure of the master, or his delegated agent, properly to perform the duty imposed upon him.

The Other questions presented by the appellant upon this appeal hardly require extended notice. An examination of the testimony has satisfied us that the verdict of the jury that the defendant was guilty of a neglect of this duty, in not supplying to plaintiff’s intestate a safe and proper car to carry him to his destination, was sustained by the evidence, as was the freedom of plaintiff’s intestate from contributory negligence. The plaintiff’s intestate, standing upon this car, whether touching the gate or hot, was entitled to assume that this gate was so fastened that it was not a trap for an unwary passenger, so that, upon the slightest pressure upon it, it would give way and precipitate him into the street. It is said that this gate was placed upon the platform for the purpose of preventing passengers from alighting from the car upon the track of the company used by cars proceeding in an opposite direction; but, if it was so insecurely fastened that the moment it was touched it would spring open, it would not be useful for the purpose for which it was placed there. And the evidence of the condition of the gate, and the fact that, when the plaintiff’s intestate and another man were either thrown or shoved against it, it at once sprung open and threw them on the ground, wTere sufficient to justify the jury in finding that the car was not a safe and proper car to transport the plaintiff’s intestate to his destination. It is also quite clear that the' unsafe condition of this car was the result of the conductor’s negligence in refusing to comply with rule 34 of the company, and see to it that the gate was securely fastened before starting the car upon the trip. He testified that he saw before starting the car that this gate was so bent that it could not be fastened with the bolt employed for that purpose, and that instead of either straightening the gate so that the bolt could be used, or tying it up with wire, or some other substance, so that it could not be opened, he simply left it in the insecure con- . dition that it was, subject to be thrown open upon the slightest pressure against it. It is also quite evident that the jury was justified from the evidence in finding that the plaintiff’s intestate was free from contributory negligence. There is nothing to show that he had any knowledge of the condition of the gate. It is not, as matter of laiv, contributory negligence to stand upon the back platform of a street car, especially when all the seats in the car are filled, and it does not conclusively appear that plaintiff’s intestate was at any time leaning upon the gate.

Several exceptions were taken to the admission of evidence, and to the charge of the court. ÍSTone of them, we think, require that we should reverse this judgment, nor do they require special notice. Taking it as a whole, we think the charge of the learned judge was fully as favorable to the defendant as the evidence warranted; that the question presented a fair question of fact to the jury, which was submitted to them upon a charge very favorable to the defendant; and that their verdict should not be disturbed.

The judgment should therefore be affirmed, with costs. All concur.


author: BRADLEY, J.

text:
    Jennie C. Wilder v. Metropolitan St. Ry. Co.
    (Supreme Court, Appellate Division, Second Department.
    Nov. 20, 1896.)
    1. Negligence—Evidence—Previous accident.
    Where a passenger was thrown from her seat as the car rounded a curve, and there was evidence that at the time of the accident the car was being run in the usual manner, a question if similar accidents had occurred at the same place was competent as relating to the structural condition of the road.
    2. Carriers—Negligence—Presumption oe.
    The fact that persons are not ordinarily thrown from their seats in a car in rounding a curve does not justify the presumption, where a person was so injured, that the injury was chargeable to the want of care of defendant.
    Appeal from trial term, Kings County.
    Action by Jennie C. Wilder against the Metropolitan Street Railway Company for personal injuries. From a judgment for $120.37 costs entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, plaintiff appeals.
    Samuel S. Whitehouse, for appellant. Thomas S. Moore, for respondent.
   BRADLEY, J.

—The plaintiff, in June, 1894, having entered one of the defendant’s Broadway cable cars at Forty-fourth street, in the city of New York, as a passenger, was thrown from her seat onto the floor of the car when it was on the curve of the railway at or about Fifteenth street. She charges, that this accident was occasioned solely by the negligence of the defendant, and seeks to recover damages for the injury alleged to have been suffered by her in consequence of it. The question of negligence of the defendant was one of fact, submitted to the jury, and upon that, as well as the question of contributory negligence. of the plaintiff, the jury were quite fully charged by the court. The inquiry here, mainly, is whether there was error to the prejudice of the plaintiff in any of the rulings at the trial. There is no charge of negligence in the manner of the construction o'f the railroad or car, or having relation to the condition of either. The purpose of the road and car wras the carriage of passengers, and the duty devolved upon the defendant was to use great care for their protection, so far as it was dependent upon the operation of its railroad. The distance between the terminal lines of this curve is 155 feet, of which 55 feet is a straight line. There is necessarily some vibration of ’a car as it goes around the curve. It appears by the evidence of the engineer having charge of the engine at the power house that the rate at which the cable runs is uniform, and is 8f miles per hour; that such was the rate of its speed on the day, and at the time of the accident, and that the speed of the cable is regulated by the revolutions of the engine, and that is controlled by a governor by which the rate of speed is fixed; and that the engine cannot run the cable any faster than at the fixed rate. And he adds that such is the rate at which the cable has been run ever since the road was opened, and it never has run any faster. When the gripman applies the grip firmly to the cable, it and the car move at the same rate of speed. And it appears that the grip is so applied, and the car moves at full speed, on the curve; that this is a reasonable necessity, because, by a slack of the grip in running on a curve, there is a liability to break or cut some of the wires on the outside of the cable, to be followed with the danger that the fractured or cut wire may be caught in the grip so as to prevent its release, and thus deny to the gripman control of the car, and cause it to run away at the .same rate as the cable moves. The consequences of such event might be serious to passengers in the car and others, as' well as to the property exposed to its collision in the crowded street. It therefore follows that no imputation of want of care arose from the mere fact that the grip ivas firmly applied, thus giving to the car on the curve the same rate of speed as that of the cable. But, if warning to passengers in the car was reasonably necessary, for their protection or safety, it ivas the duty of the defendant to give them the benefit of it. The court so instructed the jury.

The ’questions requiring consideration arose upon exceptions taken by the plaintiff’s counsel. The plaintiff and her sister, who was with her in the car at the time of the accident, had on many occasions before ridden as passengers in the defendant’s cars on the road, and on this curve. On the redirect examination the sister ivas asked the question whether, "when she was riding in the Broadway car, it ever gave a jerk like this before. The answer was excluded by the court, and exception taken by the plaintiff’s counsel. The only reason upon which the ruling may be deemed to have been made was in the fact that the witness had before testified upon the subject to which this inquiry related. She had testified about the movement of the car on the curve :

“That it went with great velocity,—so fast that I was" frightened. I believed it to be a runaway. It had never gone so fast as that before. The motion of the car when it went with that rapidity was a regular whirl around the curve. It seemed to be rapid. It seemed to be just as fast as it could go,—a runaway. I do not remember now if it went smoothly, or with a swinging motion.”

This apparently was a full description, so far as she could give it, of the movement of the car; and she did not remember whether it ran smoothly, or had a swinging- motion. It is quite evident from this statement made by her that the witness •could not add anything in answer to the question not within the import of her testimony so given in her prior examination by the plaintiff’s counsel, and for that reason the plaintiff was not prejudiced by the exclusion of the evidence called for by such question. The person who during the time this cable road had then been in operation had been, and was at the time-in question, superintendent of the defendant, being called as a witness on the part of the defense, and having testified that it was his duty to receive reports of accidents on the Broadway Railroad, was asked:

Did you ever have any report of an accident, except the one in this case, by reason of being thrown off a seat on the curve at Broadway and Fifteenth street ? ”

The general objection of the plaintiff’s counsel was overruled, and exception taken, and the answer of the witness was in the negative. A like inquiry of the assistant superintendent of the defendant was followed with a like ruling, exception, and answer. It is with much force argued by counsel that it was incompetent to prove what had occurred on other occasions, because the question was whether or not at the time of the accident the car on which the plaintiff was a passenger was negligently operated upon the curve. If the conditions to which the accident could be attributable were those ¡produced by the manner in which the road was operated, and in that want of uniformity, the results arising previously to a stated time would very likely be deemed incompetent, as the causes for them in the operation of the road may not have been such as those to which that in question might be attributable. But in the present case the curve in the railroad track was a structural condition properly existing for the purposes of the use given by the operation of the road in the running of the cars by the means applied" to propel them; and there was evidence tending to prove that at the time in question the car was rim in the usual manner, and with no greater speed than the cars had uniformly been run upon this curve before then. The proposition is quite well' established by authority- that it is competent to prove as to a structure not apparently dangerous, and which has been in use a considerable time, that no accident has occurred from its use or maintenance prior to the time of an accident resulting in an injury to a person, and attributable to it, although such person was at the time a passenger of the party sought to be charged with liability for the injury. Dougan v. Transportation Co., 56 N. Y. 1; Crocheron v. Ferry Co., Id. 656; Cleveland v. Steamboat Co., 68 N. Y. 306 ; Kelly v. Railway Co., 109 N. Y. 44; 14 S. R. 36; Ryan v. Railroad Co., 121 N. Y. 126; 30 S. R. 624. The facts which the evidence tended to prove in respect to the construction and operation of the defendant’s railroad, and before referred to, would seem to bring the evidence to which the objection was taken within the principle of the cases above cited. While there was a combination of the structure and operation of the road to which the accident may have been attributable, the former was a fixed condition, and the jury were permitted to find that the movement of the cars upon the curve had been, since the cable road had been in use, and was, uniform, as to speed and manner of running at that place. The view, therefore, is that the exception to the reception of the evidence was-not well taken.

The learned counsel for the plaintiff contends that the court erred in the refusal to charge the jury, as requested, that:

“The accident being one which, in the ordinary course of defendant’s business, does not happen when care is used, it affords, in the absence of explanation, sufficient evidence of negligence upon which to found a recovery, provided the other facts necessary to make out a case for the plaintiff are proved to the satisfaction of the jury.”

The court properly declined to charge as an entirety the request as made. There may be cases where the duty devolved upon one to protect another against danger of injury received by the latter is such as to raise the presumption of want of care on the part of him upon whom such duty rests, and thus cast upon him the burden of relieving himself from the charge of liability. This is not such a case. It is true that it was for the defendant to use the utmost care for the protection of its passengers against injury from the operation of its road, as charged by the court. It may be assumed that such f an accident did not ordinarily occur. But the assumption in the request was that as it was one which does not happen in the ordinary course of the defendant’s business, when care is used, the accident, in the absence of explanation, afforded sufficient evidence of negligence of the defendant to support in that respect a recovery. This proposition of the request was to the effect that the burden was with the defendant to prove its freedom from negligence. The court could not properly so instruct the jury. The fact that such an accident did not ordinarily happen at the place in question does not justify the assumption or presumption that the plaintiff’s injury was chargeable to the want of care of the defendant, nor need it be deemed attributable to the negligence of the plaintiff. The accident may have arisen from causes not dependent upon the negligence of the defendant. The circuitous movement of the car on the curve at the rate of the cable was necessarily a sort of a whirl of it, which may have required some care on the part of the passengers to steady themselves in the places occupied by them, with, however, no apparent danger to those within the car. The plaintiff at the moment of the accident may have been so unguarded in her position as to cause her to lose her balance, and thus be thrown from her seat by the motion of the car as it was proceeding around the curve. That this condition was applicable to her alone at the time is indicated by the fact that none of the other persons in the car were in like manner affected or disturbed in their seats. It is therefore clear that no presumption of negligence of the defendant arose, from the occurrence of the accident which resulted in the plaintiff’s alleged injury.

The court was also requested to charge the jury that, if they "believed that the car went around the. curve with more than usual velocity, they might consider that fact in determining the question of the defendant’s negligence, and the court declined to vary the charge as made • in that respect. The instruction which had been given to the jury did not embrace substantially the language of this request, hut the court had charged them that.the duty of the defendant was to use the very highest degree of care" and skill in the means which the law authorized it to employ, to see to it that the people who ride on its cars are not subjected to any danger arising from the means of propulsion which can be obviated ; tha.t, if it was necessary to send the cars around this curve at a high rate of ■speed, it was the duty of the defendant to see to it that the passengers were put in such position that they were not likely to suffer danger or accident by such rate ox speed upon the ■curve, or else that they have such warning on the approach to it that they may be enabled to protect themselves. The court very likely did not, in view of the evidence, deem the question of speed of the car upon the curve an important fact bearing upon the question of negligence of the defendant. In the refusal of the court to charge such proposition as applied to the present case, there was no error prejudicial to the plaintiff. Inasmuch as the plaintiff was seated in the car, no danger to her was reasonably to be apprehended from its velocity there. If the request to charge had related to the velocity with which "the car struck the curve, causing an unusually violent jerk of it, a different question possibly might have been presented to' the trial court, and for consideration on this review7", if it had not been submitted to the jury. No view, however, is now ■expressed upon that subject.

As a whole, the case was fairly tried, and the questions of fact legitimately arising upon the evidence were submitted to and determined by the jury; and,- as the verdict cannot be treated as against the weight of evidence, the judgment and •order should be affirmed.

All concur, except BAETLETT, J., dissenting.


author: VAN BRUNT, P. J. INGRAHAM, J.

text:
    Peter Henavie v. New York Cent. & H. R. R. Co.
    (Supreme Court, Appellate Division, First Department.
    November 13, 1896.)
    1. Railroads—Injury to persons on track—Refusal to charge.
    It is reversible error for a court to refuse to charge that looking up and down car tracks while standing on a curbstone from which a person started to cross the tracks was not a compliance with his legal obligations, and, if he did not look after he had left the curb, a recovery cannot be had.
    2. Same—Contributory negligence—What constitutes.
    A person was guilty of contributory negligence who walked out from a curb, saw a train a block away, and, without waiting to see if it was approaching, stepped on a track, where he was struck by the train and killed.
    . Appeal from trial term, New York County.
    Action by Peter Henavie, as administrator of Patrick Henavie, ■deceased, against the New York Central & Hudson River Railroad Company, for personal injuries. From a judgment for $1,000 damages and $336.10 costs, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.
    D. W. Tears, for appellant; R. P. Harlow, for respondent.
   VAN BRUNT, P. J.

—This action was brought to recover damages for the death of the intestate, the plaintiff’s son, on the 5tii of April, 1895, resulting from injuries alleged to have been caused by the negligence of the defendant. The defendant in this action operates a steam railroad on Eleventh avenue, in the city of New York; and, on the night in question, between 9 and 10 o’clock, the deceased, while attempting to cross Eleventh avenue, at or near the south crosswalk of Forty-fifth street, from east to west, was struck by an engine drawing freight cars, and killed. The witnesses upon the part of the plaintiff testified to seeing the deceased at or near the ■curbstone at the southeast corner of Eleventh avenue and Forty-fifth street, and there is evidence from which the jury might find that the deceased looked up and down the avenue at this spot. He then started to cross the street, and, upon reaching the most easterly rail of the tracks of the defendant, he was struck by the engine, run over, and killed. These witnesses testified to seeing the headlight of the train either in the middle of the block between Forty-fourth and Forty-fifth streets, or as low down as Forty-fourth street. They testified that they could not tell whether of not the train was in motion, it being impossible, when a train is not moving faster than this one, to determine that fact from simply seeing the headlight. It was a clear night, and nothing obstructed the view of the deceased. There was another train coming down the avenue upon the other track, and the accident happened just as the two trains were about passing each other. There is no evidence that the deceased looked either one way or the other after he started to cross the avenue. The distance between the curb and the easterly rail of the track was 22 feet 31 inches. It appears from the evidence that, when the deceased reached the easterly rail, the engine was there, and as already stated, struck him. One of the witnesses testified that, the train was proceeding at the rate of about 12 miles an hour; another, that it was going faster than horse cars ordinarily went. But the evidence was entirely unsatisfactory, because it appears from their testimony that the witnesses could not tell whether the train was in motion or not, or its exact location when they first saw the headlight. It is difficult to understand how, under these circumstances, they could form a judgment as to. the speed of the train. Some of the witnesses upon the part of the plaintiff swore that they did not hear any bell rung. One swore that it was not rung. And it is conceded that no whistle was blown, and that it was not customary in going through the streets to blow a whistle. At the close of the case, a motion was made to dismiss the complaint, which was denied. The defendant called as witnesses the engineer and fireman of the train in question, who testified that the bell was ringing. The fireman" testified to seeing the deceased before he reached the track, but that he did not expect that he would go upon the track; and that, as soon as he was assured of this fact, he called to the engineer, who stopped the train as quickly as possible.

The case was submitted to the jury, and the court was re-, quested by the defendant’s counsel to charge that looking at the curbstone, the point where the man started, was not a compliance with the legal obligation resting upon the deceased, and that, if the deceased did not look to the south after he had left the curb, a recovery cannot be had. This request was refused, and. we think erroneously so. In the case of Tucker v. Railroad Co., 124 N. Y. 308, 36 S. R. 272 it was distinctly held that not looking before stepping upon the track was negligence ; and this seems to be the tendency of decisions. For a party, upon approaching a steam railroad, to look when he is 22 feet from the track, and not to look again, is certainly not using that diligence which a person of ordinary prudence Avould use before crossing tracks of that description. We think, therefore, that the court failed to hold the deceased to that degree of care which a person of ordinary prudence would exercise under the facts disclosed by the evidence in the case.

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

All concur.

INGRAHAM, J.

-—I concur in the reversal of this judgment, upon the ground that there is no evidence to justify the finding that the plaintiff was not guilty of contributory negligence. The accident happened between 9 and TO o’clock at night, on Eleventh avenue, in the city of New York, on April 5, 1895. One witness says that he srav the deceased start to Avalle across the street, Avhistling; that, the first thing he knew, there Avas a crash there, and the man was under the cars. The other Avitness produced by the plaintiff testified that he srav the deceased just as he started to cross the street; saw him look up and down. Both witnesses testified that they saw the headlight of the engine that struck the deceased AArhen the deceased started to go across, but that it appeared to be standing still and one of the witnesses adds that Avhen an engine is a block aAvay, going at the speed that this engine Avas going, it is impossible to tell whether the engine is standing still or approaching. These witnesses say that the deceased looked both ways. There is no evidence to show that his eyesight was impaired, or that he was not in possession of his faculties. He must therefore have seen this engine at the time the witness saw it; and it would seem probable that he came to the same conclusion that they did, that it was standing still, and then proceeded to cross the track, without waiting to ascertain whether such conclusion was correct or not. The engine was one block away from the deceased wdien he started to cross the track. It would manifestly take but a short time for the engine to run that distance; and the witness testified that, at the time the man got to the first rail of the track,-—that is, the east rail of the east track,—the train had got there. “ It was a freight train. I could not tell how many cars.” The car, therefore, struck the deceased just as he stepped upon the traylc. He only looked as he left the curb, and then must have seen the engine, as a bright headlight was burning, and it was plainly visible. He then proceeded to cross the track, without looking or stopping to see whether or not the train was standing still, as he must have assumed, and without taking the slightest precaution to protect himself from injury. The engineer of this train would not be expected to anticipate that this plaintiff would have stepped upon the east rail of this track, right in front of the approaching car, in such a way as to expose himself to being run over. Under these circumstances, I can see nothing to show that this engine-driver was negligent in not stopping as it approached this place. But, whatever may be said as to the negligence of the defendant, it seems quite clear that the plaintiff has failed to prove that the deceased was free from contributory negligence. On the contrary, it is proved that he was guilty of such negligence, and that the accident was the direct result thereof. He walked out from the curb, saw a train a block away, and, without waiting to see whether the train was approaching, deliberately stepped upon the track, when he was struck. From this state ■of facts, it is impossible that this accident should have happened except for the carelessness of the deceased, who deliberately placed himself in front of an approaching engine, without taking the slighest means to ascertain whether the train, which he must have seen upon the track, wTas approaching.

I concur with the presiding justice, therefore, that the judgment should be reversed.

VAN BRUNT, P. J., and BARRETT, J., concur.