author: PATTERSON, J.

text:
    The People, App’lt, v. Equitable Mutual Fire Insurance Corporation of New York, Resp’t.

      (Supreme Court, Appellate Divison, First Department,

      Filed January 24, 1896.)

    1. Insurance—Mutual—Dissolution—Insolvent.
    A clear case of violation of law, actual insolvency, insufficiency of assets to justify the continuation of business, or acts showing that the affairs of the corporation are being carried on fraudulently or unlawfully, must be presented before the court will interfere by the appointment of a receiver in case of a mutual insurance company.
    3. Same.
    Subdivision 4, section 1785 of the Code, relating to the dissolution of corporations, is not limited by section 43, chapter 690 of 1893
    3. Same.
    In a doubtful case, the ability and offer of the company to restore its impaired capital by supplying funds, to any amount directed by the insurance department, are circumstances proper to be considered upon the application for the appointment of a receiver.
    Appeal from an order denying plaintiff’s motion for a temporary receiver.
    Theodore E. Hancock, for People ; Kenneson, Crain & Alling, for resp’t.
   PATTERSON, J.

—We see no good reason for differing with the court below in its conclusion not to appoint a receiver pendente lite of the defendant corporation. The grounds of the application made by the attorney general were that the defendant was insolvent and unable to pay its debts, and had violated previous provisions of the laws under which it was incorporated and of statutes of the state binding upon it, whereby it incurred a forfeiture of its rights and franchises, and became liable to a judgment of dissolution; and the affidavits of Messrs. McCabe and Cordon, upon which the motion was founded, allege as reasons for a receivership that there are funds and property of the corporation, in various forms, which need immediate care and attention, and should therefore, be placed in the custody of the court. The duty of the attorney general to apply for, and the authority of the court to appoint, a receiver of such a corporation as this, are matters of statutory regulation, Code Giv. Proo. §§ 1785,1786, 1788, 1810; but a clear case of violation of law, actual insolvency, insufficiency of assets to justify the continuation of business, or acts showing that the a Bairs of the corporation are being carried on fraudulently or unlawfully, must be presented before the court will interfere. In this case, the action of the court is asked for on two principal grounds of complaint, namely, that the defendant, a mutual fire insurance corporation, was at the time this action was begun, insolvent, having an excess of indebtedness over assets of $53,091.19, and that it has violated the law in that 20 per cent, of the capital stock notes was not paid in cash, as required by the insurance law. The exhibit of the company’s affairs, from which the conclusion is drawn by the plaintiff that it is insolvent, is contained in a report, annexed to the complaint, made to the superintendent of insurance by official examiners; and upon the basis of the unqualified adoption of that report, insolvency of the corporation would appear. But the examiners omitted to credit the corporation with $160,000 of capital stock notes, such as are authorized by the law under which this defendant was organized and is doing business. All these notes are now in the possession of the company. They are in form and certified as required by the statute. They are held as security for losses and claims. Ho assessment has ever been made upon them and the»makers are liable thereon for the full amount thereof.. Mr. Walton, the secretary of the company, swears “that, upon the organization of the defendant, it had, in compliance with law, 400 applications for insurance, premiuns on which amounted to $200,» 000, of which $40,000 was paid in cash, and notes of solvent parties, founded on actual and bona fide applications for insurance, for $160,000.” Why these notes are entirely ignored is not made to appear. The stand as capital or as security for all losses and claims until the accumulation of invested profits equals the amount of cash capital required to be possessed by stock fire insurance corporations, — the liability of the makers being proportionately reduced as profits accumulate,—and are to be taken, into account in the ascertainment of the financial condition of the company. G-iving the defendant the benefit of this asset, the charge of insolvency falls to the ground.

The second serious charge upon which the decision of the motion under review was based is that the defendant violated the law by non compliance with that provision of the statute which requires-20 per cent, of the $200,000, of premiums referred to in section 111, c. 680, Laws 1892, to be paid in in cash before the company may begin business. Under that requirement, the de» ' fendant was bound to have available, for all purposes, the sum of $40,000 in cash when it began transacting business. Its officers reported to the insurance department that it was possessed of that amount The examiners of the insurance department have declared that the report was false, and that, instead of having that amount of cash on hand, they merely held 400 sight drafts of $100 each, which were deposited with the Trademen’s Bank in. the city oE New York; and Hopkins, an accountant, swears that he was told by the manager of the company that these 400 drafts were never paid, but that $40,000 was borrowed on them by the company from the bank. Mr. Skinner, the manager, denies having made that statement, and other affidavits show that the company never had any relation whatever with the bank as to these drafts, except to receive the credit, as cash, of the proceeds of the 400 drafts, which by arrangement between the bank and the makers of the notes, were, without any intervention of the company, received on deposit as a cash asset of the company, and credited as cash on the bank pass book of the company. This fact seems established by abundant evidence, and the bank credit existing, the company was entitled to its use, and could draw for the full amount in money as and when it was needed. The subsequent history of the company’s relations with the Trademen’s Bank is not controlling upon the particular subject of fraud or noncompliance with law at the time the company began business, now under consideration. That some officers of the corporation committed gross-improprieties and irregularities must be conceded; but as soon as the directors became aware of them, those acts were repudiated by formal resolution of the directors. Some of these acts were highly reprehensible. The check for $12,500 given on August 6, 1894, purporting to be for return premiums, but in reality given to take up 125 of the sight drafts, was a great wrong; but it was without authority. And the giving of the check for $21,-400 to the American Exchange Bank, to secure 214 similar drafts were equally culpable; but that act was also disavowed. Repara- ' tion for these wrongs is, however, tendered. Readiness, willingness, and ability to make good the impairment are shown, and the company has given notice to that effect to the insurance department, and has claimed the benefit of the 80 days’ grace the statute in which to accomplish that object. We have no reason to doubt the sincerity and good faith of the offer. We do not assent to the view that section 43 of chapter 690 of the Laws of 1892 operates as a limitation upon those provisions of the Code of Civil Procedure defining the cases in which the attorney general may institute an action of this character. There may be many cases where immediate action is called for, and where a delay of 30 days might work irreparable injury. In a doubtful case, however, such as the present, we consider that the ability and the offer of the company to restore its impaired capital by supplying funds, to any amount directed by the insurance department, are circumstances proper to be considered upon the application. With the other facts to which we have adverted, they furnish an additional reason for the exercise by the court of its disoretiog adversely to the appointment of a receiver.

The order appealed from, under the condition upon which it was granted, should be affirmed, with $10 costs and all disbursements.

All concur.


source: Caselaw Access Project

author: WARD, J.

license: Public Domain

text:
    Frederick Bosworth, App’lt and Resp’t, v. Standard Oil Company of New York, App’lt and Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Damages—Excessive—Personal injuries.
    A verdict for $8,000, in an action for personal injuries is excessive, where it appears that plaintiff was thirty years old at the time of ihe injury, and before it occurred he was healthy and able to perform any kind of heavy labor, but afterwards he was compelled to take ligher employment, atiower wages, and was constantly liable to annoyance, pain and danger, and his condition would so continue unless he submited to an operation which was attended with some risk and would cost at least $125 and lose him a month's time.
    2. Same.
    In such case a verdict of $5000, will not be disturbed either as excessive or as inadequate.
    Appeal from an order setting aside a verdict of $8,000, for plaintiff, unless he would stipulate to reduce it to $5,000.
    Frank Brundage, for plt’ff; Adelbert Moot, for def’t.
   WARD, J.

—The only question in this case is whether the verdict of $8,000 was excessive, and whether the order granting a new trial unless the plaintiff would stipulate to reduce the verdict to $5,000 and interest should be sustained. The plaintiff contends that the verdict of $8,000 was not excessive, and the defendant contends that it was excessive, and that $5,000 would also be excessive, and that the plaintiff should not have recovered to exceed $2,000. At the time of the áccident (October 18, 1894) to the plaintiff, and for some time prior thereto, the defendant owned and occupied certain premises in the city of Buffalo, H. Y., known as the “Atlas Works,” which was operated as an oil refinery. The Buffalo Creek Railroad ran into the yards of the Atlas Works. In connection with its works, defendant had laid tracks, and erected a filling rack near the track, for the purpose of loading cars with oil, which tracks and rack were situate in a part of Prenatt street, in said city, and were placed there by defendant by consent and permission of the city authorities who had the right to grant the same. The plaintiff was in the employ of the Buffalo Creek Railroad Company as a switchman, and belonged to a crew whose duty it was, among other things, to go with an engine upon the lands so occupied by the defendant, and remove cars loaded with oil, and also to place upon the tracks, or in that vicinity, empty cars, which were placed in position for loading by those engaged in the employment of the defendant. Partially under the filling rack, and three feet and nine inches, from the south rail of the north track, there was an oil barrel sunken in the earth to the depth of thirty inches, which barrel defendant had kept in that position for a long time before the accident Whether said barrel had been kept covered by the defendant was a controverted question on the trial. The distance from the side of the ear to the edge of the barrel was about eighteen' inches. While engaged ia the performance of his duties as such switchman,'the plaintiff went in between two cars to couple them-, and had let off the brakes. He then stepped out from between the ears into the sunken barrel, and sustained the injury complained o£ The barrel was open at the time of the accident, the cover lying about two and one-half feet from the barrel. ■ The plaintiff was thrown forward, striking the right side of his abdomen across the chime of the barrel. The plaintiff continued his work that day, and at night discovered a soreness across the right side of the abdomen, but suffered no pain until about four days afterwards. The next day he went to work as usual, and continued his work for thirteen or fourteen days. He had discovered a swelling at the place of the injury about the size of a hen’s egg. After about ten days, he suffered very much pain and soreness. He consulted a physician, and discovered that he had a hernia or rupture. He obtained a truss, which was put ori November 1st. After putting on the truss, he continued to work more or less; and finally, on the 24th of November, he gave up work entirely, from his suffering so much pain, and was weak and sick from the accident, and was laid up with it, and did no work until about the 18th of January following. After that he was given a lighter position, and at .lower wages. Before his injury he received $65 per month; after that he received only from $40 to $45 per month. Before the injury the plaintiff was a vigorous, strong, healthy man, capable of doing any kind of heavy work, and was thirty years of age.

The physician of the plaintiff, Dr. Thomas Q-. Allen, of Buffalo, in speaking of the injury to the plaintiff and its effect, testified :

“It is very doubtful, in my judgment, if Bosworth will ever recover from the effect of that rupture so as to be able to do heavy work. I don’t think he will 'without danger to himself. The shifting of the trust in climbing from car to car may cause the rupture to slip out again. There is danger, if he cannot call a physician at once, to have strangulated hernia, if he cannot reduce it himself. That is a danger.. There would be danger from the rupture to protrude again if the truss were to break, or if he were to met with a sudden fall, so that the truss should give way. He will not, in my judgment, recover from his injury, so at to be able to do more than ordinary, light work, without danger to himself. That danger will be constant as long as he wears a truss. In my judgment, he could not safely perform his duties as switchman, getting off and on cars, turning brakes, as he did before this accident, because he would be likely to shift that truss. It is almost impossible to put a pad on a hernia that way, and hold it exactly in the spot, The shifting and bending is apt to disturb the pad, and. if it gets out of position, the rupture will protrude. The rupture is such as, during the balance of his life, it will prohibit him, with safety, from doing the work he did before. There will be more or less risk to run all the time.”

These conclusions of this witness were sustained by another physician called by the plaintiff, and were not substantially controverted upon the trial. Dr. Eos well Park was called for the defendant, and, after answering a hypothetical- question, he stated that a surgical operation could be performed, in bis opinion, upon the plain* iff, with but very little risk, which would relieve him, at the expense of $125 to $150, and losing a month's time.

Upon the state of facts here presented, w.e concur with the trial court that the verdict of $8,000 was excessive, and should have been reduced; but the injury to the plaintiff was serious. It subjected him to a burden of annoyance, pain, and danger during the residue of his life, unless he chose to take the risks of the surgical operation referred to. He was not obliged to incur that risk. It was a matter of judgment and discretion with him as to whether he should do so. The learned trial judge, having the witnesses before him, observing the appearance and condition of the plaintiff, was better qualified to judge whether the verdict was, excessive, and to what extent it should be reduced, than the appellate court, with only the printed records before it, can possibly be; but from that record we have reached the conclusion that the amount fixed, of $5,000, to which the verdict should be reduced if the plaintiff should stipulate, was proper, under the eircumstanstances of this case; and the order should be affirmed, but without costs to either party, with leave to the plaintiff to stipulate as provided in the order appealed from within twenty days.

All concur.


text:
    John Raines v. New York Press Company, Limited et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Pleadings—Libel—Ikrelevant allegations.
    An allegation in a complaint for libel that the libelous words were copied in other papers and commented on generally by the press, should be stricken out as irrelevant.
    8. Same—Official investigation.
    A paragraph of such complaint that the senate ordered an investigation, of the matters contained in the publication, etc., is clearly irrelevant, though the article complained of suggested the investigation of the charges.
    8. Same. 1
    An allegation which states that the injury was to the plaintiff’s feeling® by reason of the libelous publication,—the charge being that the publication was malicious,—is permissible, as such injury to the feelings may constitute an item of damage ; hut the injury to the feelings on account o£ the investigations, rumors and suspicions stated, are irrelevant.
    4, Same. '1
    Where a motion embraces the striking out of both relevant and irrelevant matter in the same paragraph, it may properly be denied as embracing too much.
    Appeal from an order refusing to strike out part of the complaint.
    De Lancy Nicoll, for app’lts ; George Raines, for resp’t.
   WARD, J.

—The respondent (the plaintiff), John Raines, a member of the state senate, instituted an action against the defendants, claiming damages for a libel alleged to have been committed upon him by the Press, a daily newspaper published in the city of New York by the defendants, having a daily circulation of more than 100,000 copies. The libel consisted in charges and statements made in that paper in its issue of April 18, 1895, to the effect that the plaintiff, with other senators, had been guilty of corrupt and improper conduct with reference to a bill pending before the legislature of the state at that time. The complaint is very long, embracing many matters connected with the charges. The defendants moved at special term to strike out the following as irrelevant:

First: “And its editorials and news items were extensively copied and commented upon by all the leading newspaper press of the state of New York, and the plaintiff particularly states to the court that the libelous and defamatory publication in the defendant’s newspaper in its issue of April 18, 1895, which said publication is hereinafter particularly set forth, was so copied and commented upon by the general newspaper press of the state of

Also, second: “ The foregoing publication made of and concerning this plaintiff by defendants as aforesaid was made the subject of editorial comment and news items in all the newspaper press of the state of New York as well as of all important cities of the United States, and was given prominence as sensational news wherever such comment was made, as bringing into disrepute this plaintiff, as well as the bodies of men with which this plaintiff was associated in said publication.”

Also, third: That immediately after said publication was made the senate of the state of New York, by formal resolution, adopted in open session, ordered an investigation of all the matters contained in said publication, which investigation continued during a period of nearly one month, and the details thereof were made the subject of much comment. And this plaintiff was obliged to employ and did employ counsel in his behalf to attend upon all the hearings of the said investigation at great expense, and to personally devote a great deal of time to the gathering of evidence and personal attendance upon such investigation to establish the falsity of all the matters suggested and charged by all the matters of such publication by defendants. That such labors were protracted and exhausting, causing the plaintiff great mental anxiety, because of the difficulty of the investigation, and the false rumors and suspicions cahsed to be put in circulation by said publication, and the shame, reproach, ‘and infamy brought hereby upon the plaintiff.”

Also, fourth: “ That plaintiff was further subjected to the severe nervous strain, imparing plaintiff’s usual health, by the mortification incident to the publicity of all the charges, investigation, rumors, and suspicions aforesaid.”

Also, fifth: “ And because no vindication by any investigation would impair the injury done to the plaintiff’s reputation by the universal publication of the charges contained in said publicacatión of defendants.”

The motion to strike out prevailed at the special term as to paragraphs 2 and 5 aforesaid, but was/denied as to the other paragraphs, being 1, 8 and 4. The only appeal taken from the order was by the defendants from the refusal of the special term to strike out the last-mentioned paragraphs.

The learned judge at special term was clearly right in striking out the second paragraph. The first paragraph should also be stricken out for the same reasons that must have governed the special term in striking out the second. The first alleges in general terms that the defamatory publication was copied into other papers, and commented upon by the general newspaper press of the state, and the defendants’ editorials and trews items upon the subject were also copied and commented upon. This matter is of the same nature as appears in the second paragraph, and is subject to the same objections. Assuming that the purpose of the pleader was to enhance the damages by showing a repetition in other newspapers and by others of the libelous matter, it was too remote for that purpose. The wrongful repetition of a libel by third persons is not the act of the defendants, but of such third persons,- and, if damage comes thereby, the responsibility falls upon the third persons, who must respond. In Ward v. Weeks, 7 Bing. 211, the defendant was charged with saying of the plaintiff: “ He is a rogue and swindler. I know enough of him to hang him.” The special damage alleged was that one Bryer refused to trust the plaintiff with goods on credit.' The evidence was that the defendant had spoken the words to one Brice, who had at a subsequent time and place, and without any authority from the defendant, repeated the statement to Bryer, the repetition of which by Bryer, and not the original statement, occasioned the damage; and it was held that a nonsuit was properly directed. In Hirst v. Goodwin, 3 Fost. & F. 257, where'the plaintiff was a veterinary surgeon, and for the purpose of proving special damage a person was called who said he had ceased to employ the plaintiff since the words were spoken, but it appeared that he was not present when the defendant uttered them, and therefore must have heard them from a third party, it was ruled by Martin, B., that such evidence of damage was inadmissible ; the action for such damage should have been brought against the person who repeated the slander. The rule enunciated in these cases seems to be sustained by Terwilliger v. Wands, 17 N. Y. 54 ; Hastings v. Palmer, 20 Wend. 225 ; Keenholts v. Becker, 3 Denio, 346 ; Olmstead v. Brown, 12 Barb. 657. These cases were actions to recover special damage for words not slanderous per se, and in Terwilliger v. Wands the court says:

“ Where the words are spoken to one person, and he repeats them to another, in consequence of which the party of whom they are spoken sustains damages, the repetition is, as a general rule, a wrongful act, rendering the person repeating them liable in like manner as if he alone had uttered them. The special damages in such case are not a natural, legal consequence of the first speaking of the words, but of the wrongful act of repeating -them, and would not have occurred but for the repetition; and the party who repeats them is alone liable for damages,” citing Ward v. "W eeks, supra, and other cases.

Further on the court says, rather by way of supposition:

“ Occasions may doubtless occur where the .communication of slanderous words by a person who heard them will be innocent; and it is certainly reasonable, when repeated on such an occasion, ■and damage results as flowing directly and naturally from his own wrong.”

But the court adds:

“It is not necessary, in the present case, to decide whether the proposition is law.”

Beardsley, J., in Keenholts v. Becker, supra, makes the same suggestions as in Terwiliiger v. Wands, that a person may be responsible for a slander filtered through an innocent third person, in an action where special damages must be alleged and proved, and adds:.

“A different rule should, perhaps, govern where the repetition was itself slanderous, and the injurious consequences arose in part, at least, from the second slander.”

The reason for not charging the defendant with the damage that flows from a repetition of his words by others in actions for words not slanderous per se applies with greater force to actions of this character, where the words are libelous. The repetition of them cannot well be innocent. The repeater knows from the character of the words spoken that the charge is serious and destructive, and if he repeats them he does so at is own peril, and is a wrongdoer, and an action can be maintained directly against him by the party injured, independent of any remedy he may have against the person uttering the first slander or libel. In the case before us no names are given of papers or persons repeating this libelous matter. If this allegation is sustained, a door will be opened so wide that the end cannot be foreseen. If the defendants can be charged with the act of a publisher who publishes the libel from the columns of the defendant’s paper, they can also be charged with publication through a series of newspapers, one'taking from the other indefinitely; and where will the matter end? We have reached the conclusion that this paragraph should be stricken from the complaint as irrelevant.

The third paragraph sought to be stricken out is that the senate ordered an investigation of the matters contained in the libelous publication, etc. This is clearly irrelevant. It is not alleged that the investigation by the senate was sought by the defendants. For aught that appears, the investigation was sought by the plaintiff for his own vindication, as is frequently the case when members of legislative bodies are assailed, and their motives or characters traduced. It is true that the defendants’ newspaper article suggests that its charges ought to be investigated, but by whom, or what body or person, is not stated. The charges being of a criminal character, the most appropriate tribunal to investigate, them would-be the grand jury. The senator’s constituents might deem it their duty to investigate them, so too the senate, the body whose members had been libeled. It would not be claimed that the plaintiff would be entitled to damages or to be reimbursed for any expense that he might be put to in consequence of an investigation by his constituents, by detectives, by the grand jury, or other public ■body. We have reached the conclusion that this paragraph is clearly irrelevant, and should also be eliminated from the complaint.

This brings us to paragraph four;

“That plaintiff was further subjected to severe nervous strain, impairing the plaintiff’s usual health by the mortification incident to the publication of all the charges, investigations, rumors, aud suspicions aforesaid.”

In so far as this allegation states that the injury was to the plain tiff’s feelings by reason of the libelous publication, — the charges being that the publication was malicious,—it is permissible, as such injury to the feelings may constitute an item of damage, Brooks v. Harison, 91 N. Y. 92 ; but the injury to the feelings on account of the investigations, rumors, and suspicions stated are irrelevant. But as the motion embraces the striking out of both relevant and irrelevant matter in the same paragraph, it may properly be denied as embracing too much. This paragraph four will not he stricken out.

The conclusion, therefore, that we have reached is that paragraphs .1 and 3 shall be stricken from the complaint as irrelevant, and paragraph á shall remain, and the order of the special term should be modified accordingly; but as neither party has wholly prevailed upon this motion, it should be without costs.

All concur.


author: WARD, J.—

text:
    Nettie M. Stillman, as Administratrix, etc., App’lt, v. Brush Electric Light Company of Rochester, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Pleading—Bill op particulars—Personal injuries.
    Where, in an action against an electric light company for the death of plaintiff’s intestate from an electric current while timraing an electric lamp, the complaint alleges that the lamp did not have safety appliances long in use, and the plaintiff lias in mind, or can ascertain, any improvements, of which the defendant claims to be ignorant, it is proper that she should state them, so that the defendant may be apprised of the particular improvements claimed.

      % Same—Matter known to moving party.
    Where, under an allegation in the complaint that defendant maint'imcd the lamp with a defective switch, and with wires improperly iiisu-atcd, and failed to inspect the wires and see whether the current was grounded, it is error to require plaintiff to furnish a bill of particulars of the respects in which the lamp was defectively constructed and improperly maintained and the place where the current was grounded.
    Apperl from an order requiring plaintiff to furnish a bill of particulars»
    Peter H. Van Auken, for app’lt; George F. Yeoman, for resp’t.
   WARD, J.—

The plaintiff, in her complaint, alleges that on March 10,1893, the defendant was the owner of certain real estate buildings, machines, dynamos, wires, and other appliances used in the manufacturing and supplying of electricity for the city of Rochester; that the-defendant negligently maintained, as a part of its said plant for electric lighting purposes, a.certain lamp, in the store of Garson, Myer & Co., of an imperfect and obsolete design and contraction, and which did not have thereon certain improved appliances and attachments, which at said date, and long prior thereto, were and had been in general use in other cities in this country, and which were necessary at all times herein mentioned for the safety of persons who, in the exercise of reasonable and ordinary care, had occasion to handle said lamp, and to repair and trim the same, and defendant negligently maintained said with a defective switch, and other wires defectively constructed, and in close proximity to certain gas gets and lines of metal pipe, without having in, upon, and around said lamp and its connecting line of wire adequate and proper insulation and protection; that the defendant negligently maintained upon its said line' of wire and circuit connected with said lamp in the store of Garson, Myer & Co. a large number of arc lamps for electric lighting purposes, which require the transmission of an electric current of great strength and intensity, and dangerous to human life, “and the defendant at all times herein mentioned negligently maintained the same without providing wire properly insulated for the transmission of said current and negligently maintained said line, and transmitted said current of electricity over a wire, the insulating covering of which was old, worn, torn, and imferfect, and useless for the purpose of insulation.” The complaint also charged the defendant with negligence in not inspecting the lines of wire in question to see whether they were properly insulated, or whether the current upon the said line had become grounded. The complaint further alleged that on the day aforesaid the plaintiff’s intestate, Arthur B. Stillman, who was employed by the defendant as a trimmer of lamps, in preparing and trimming a defective lamp in the store of Garson, Myer & Go., in the proper discharge of his duties, was killed by a current of electricity, without fault on his part, and by reason of negligence of the defendant aforesaid; and the plaintiff brings this action to recover damages for such killing. The special term, upon the application of the defendant, ordered the plaintiff to deliver to the defendant’s attorneys “a bill of particulars of the plaintiff’s claim, duly verified stating what improved appliances and attachments in general use at the date of the death of the said Arthur B. Stillman, referred to in the complaint, were not upon the lamp in the store of Garson, Myer & Co., referred to therein, and in what respect said lamp was negligently maintained, and in what respect the said lamp was defectively constructed, and where the ground upon the circuit upon said line mentioned in the complaint was located, and in what manner it was related to the death of said Stillman, and that the plaintiff be precluded from giving any evidence in respect to such matters upon the trial, other than as specified in said bill of particulars.”

The appeal from this order brings the question before us. The complaint and the answer of the defendant (which denied its negligence and its liability), and the affidavit of George W. Archer, president of the defendant, in which he alleged that the defendant was.ignorant of the negligence complained of, or of the defects complained of, or their character, and had no knowledge of what improved appliances or attachments were not upon the' lamp, or of any ground upon said circuit or line at same time, were the papers upon which the defendant moved for the order stated. These were met on behalf of the plaintiff with the affidavit of William A.Breese a practical electrician, and who was familiar with the machinery and system of the defendant, in which he stated that the defendant was able to detect any grounds by simple test well known to electricians, and determine, within a short distance, the location of said grounds, and could determine by tests the presence of a ground, and its approximate location, and it required but a short time to locate the exact point of a ground, by sending men over the circuit; also, the plaintiff’s affidavit, in which she stated positively that she was unable to give any, or make any, further particulars in regard to the cause of the accident by which her husband met his death, and the particular acts of negligence of the defendant in relation thereto, than her complaint stated; and she made a part of her affidavit the testimony taken upon a coroner’s inquest held upon the body of her husband to ascertain the cause of his death, in which the foreman of the defendant was called as a witness, and claimed that his evidence indicated such a knowledge of the situation and circumstances causing the death as would show that the defendant should know the facts sought to be obtained by the bill of particulars; and the appellant’s contention here is that she should not be required to furnish any of the particulars required by the order.

We are of the opinion that the first branch of the order, requiring the plaintiff to state what improved appliances and attachments were in general use at tlie death of the intestate that were not upon the lamp in question, should be sustained. If the plaintiff had in mind, or could ascertain, any such improvements, of which the defendant claims to be ignorant, it is proper that she should state them, so that the defendant may be apprised of the particular improvements claimed. As to the other branch of the order, requiring specifications as to wherein the negligence of the defendant consisted, with regard to the lamp and its connection, there is more difficulty. The defendant cites, as sustaining its contention in this regard, O’Hara v. Ehrich, 32 St. Rep. 118, where the general term of the superior court of Hew York held that the plaintiff should give particulars of the negligence of the defendant under the general statement in the complaint that the injury was caused by the negligent and improper construction, management, and operation of an elevator, and the case of Lahey v. Kortright, 13 Civ. Proc. R. 352, where the same court, in an action to recover damages, claiming a defect in the title to prem« ises sold, required a bill of -particulars showing wherein the title was defective; and citing also Kearns v. Railroad Co., 17 St. Rep. 692, where a driver of one of defendant’s cars alleged that he was injured through the defendant’s negligence, by being thrown from a car which was “out of repair and in an unsafe condition,” and the complaint specified in what respect the car was out of repair, and unsafe to a certain extent The court held that, if" the plaintiff sought to prove particulars not alleged under his general allegation of negligence, he must give, as to such a bill of particulars. In McCarthy v. Railroad Co., 27 N. Y. Supp. 295, also cited by the defendant (the-special term of the superior court of Buffalo), in an action where a brakeman was killed, the complaint alleged the ground of action in a .very general statement that defendant negligently operated its trains of cars through incompetent servants, and under insufficient rules, and with unsafe appliances, and over defective tracks. The court held that the plaintiff should give particulars as to the train on which the deceased was killed, when killed, where the track was defective, what rules were insufficient, and in what respect the defendant was negligent in operating its train. It will be seen that these cases are based substantially upon bald allegations of negligence, without specifications as to the particular negligence of the defendant, and in cases where the plaintiff would be expected to know, or upon reasonable inquiry could ascertain, the particulars. In the case before us the plaintiff, in her complaint has been much more specific, and has amplified her general charge of negligence with several important particulars. Further than that she is unable to go, and insists that the defendant is much better able to state the facts sought by the bill of particulars, from its knowledge of the situation, than she possibly can . be. The plaintiff’s claim is that the deceased met with his death from the use by the defendant of that wonderful and mysterious power which in the last few years has been utilized and harnessed into the uses of business and the purposes of society. To one in ex-' perienced in the manner of making this force available,, it is like a sealed'book, and only those who have made a business of studying and operating electricity can understand its operations or its dangers. It seems absurd, then, for the defendant, who is so much better equipped and better informed on the subject, to require this information from the plaintiff. In Donohue v. Meares, 47 St. Rep. 188, where an administrator sought to recover damages for the death of a decedent who was burned to death while engaged as an employe in the defendant’s hotel, and the only allegation of negligence consisted in this: that the defendant did not provide a reasonably suitable or safé place for the deceased to sleep in, and the “ want of care of the defendant in failing to-provide reasonably safe means of egress in case of fire or accident in and about said building and premises,” defendant moved for a bill of particulars as to these general allegations, which was denied; and Judge O’Brien, in speaking for the court (general term of the First Department), says:

“ While the power of the court to order bills of particulars extends to all descriptions of actions, we think that caution should be exercised in requiring bills of particulars in actions for negligence, and particularly where the action is brought, not by the person injured, but, as here, by one claiming in a representative capacity. Where the negligence alleged results in death, and the action is brought by an administrator, the latter ordinarily is obliged to obtain his evidence and facts from sources other than his own personal knowledge, and the defendant is ordinarily in possession of facts bearing upon the cause of death charged through his negligence. lío rule can be formulated with respect to any class of cases, much less with respect to actions of negligence, as to when a bill of particulars will be required, it being necessary to determine, upon the facts presented upon the application in each case, whether it should be granted or denied.”

We adopt these views, and they seem exceedingly appropriate to the case at bar.

We have reached the conclusion that the order of the special term should be modified so as only to require the plaintiff to deliver to the attorneys for the defendant, within twenty days from the service of this modified order, and a notice of its entry, a bill of particulars, duly verified, stating what approved appliances and attachments in general use at the date of the death of Arthur B. Stillman.were not upon the lamp in the store of Gfarson, Myer <& Co., referred to therein, and that the other portion of the order of the special term be reversed, but without costs of this appeal to either party.

All concur.


text:
    Edward R. C. Clarkson et al., Appl’ts, v. Western Assurance Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Verdict—Subject to opinion op court.
    Where a verdict is ordered subject to the opinion of the court without qualification, exceptions cannot be heard; and the only question before the general term is which party is entitled to final judgment on the unconlroverted fact. In such case, it is improper to direct a verdict subject to the opinion of the court, where exceptions have been taken on the trial or the facts are controverted.
    2. Same.
    Upon a simple motion for a now trial, upon exceptions to be heard in the first instance at general term, the court has only to consider whether there was any question for the jury, and whether that question is brought before it by the exception finally taken by the plaintiff to the direction of a verdict in favor of the defendant.
    S. Insurance—Policy.
    Where an insurance company refuses to deliver the policy of insurance and resists payment of the loss on the ground that no obligation to insure was entered into, it cannot take advantage of a limitation clause that might ■ have been inserted in the policy had it been delivered.

      4. Same—Issuance of policy.
    The company, in an action to compel an insurance company to execute a policy after a loss in accordance with an accepted application, cannot show that, under tliis form of policy, the insured’s claim for insurance money would be barred by limitation.
    5. Same—Action.
    A party may recover on an oral contract to issue a Are insurance policy.
    6. Same—Forfeiture—Reinstatement.
    The acceptance by an agent of premiums on a forfeited policy does not reinstate the policy, unless such agent was authorized to receive the money or to waive the forfeiture. r~-
    Appeal from an order, setting aside a verdict directed for defendant, subject to the opinion of the general term, and ordering a new trial.
    Benjamin H. Williams, for pl’ffs ; George Clinton, for deft.
   WARD, J.

—The complaint in this action alleged, in substance, that on the 9th day of December, 1892, Melville F. Brown and Charles H. Blakesly were the owners of the steamer Northerner, and Thomas Maytham, Edward 0. Maytbam, Lambert W. Drake, and John Kelderhouse were mortgagees, holding a mortgage thereon, and that, on said last-named day, the said mortgagees applied to the defendant to insure $6,000 on said steamer against loss by fire for the term of four months from that date, loss, if any, payable to said mortgagees; that the defendant accepted the application, and on the 12th day of December, 1892, before any policy was delivered, the steamer burned and was totally destroyed at L’Anse, Mich.; that afterwards the defendant was' tendered the premium, but refused to deliver the policy or pay the amount insured. The answer, among other things, denied the allegations in the complaint, and alleged that in the application for insurance it was represented and warranted that said steamer lay at L’Anse, Mich., arid that she was properly moored and laid up for the winter, which was not true; that the' steamer had on hoard petroleum; that the risk was extra hazardous, which was unknown to the defendant It further alleged that the policy which would have been issued by the defendant would have contained, among othér provisions, a clause to the effect that no suit or action on sucli policy for the recovery of any claim should be sustainable until after a full compliance by the insured with the requiiements set forth in the policy, nor unless commenced within twelve months after the fire; the relief demanded in the complaint was that the defendant deliver to the plaintiffs a policy of insurance in accordance with the agreement to insure, and that plaintiffs have judgment for tiie sum of $6,000, and intetest thereon from the 1st day of May, 1893. The action was not commenced until after the expiration of twelve months from the time of the fire. The policy was never delivered, nor was it produced upon the trial. No premium was in fact paid, but, by the custom of the defendant, such premiums were to he paid upon bill rendered for the premiium, and thus credit given to some- extent; and no point is made here because such premium was not paid previous to the fire. The plaintiffs were the owners of the cause of the action at the commencement of the action. At the conclusion of the plaintiffs’ evidence, the defendant moved for a nonsuit. The plaintiffs asked to go to the jury upon the questions in the case, and the trial judge stated that there were two exceptions in the case that had been taken by the plaintiffs as to the admission of evidence, and, if they were out of the way, he would make a disposition of the case by sending it to the general term, scbject to its opinion. These exceptions were waived by the plaintiffs’ attorney, and the learned trial judge proceeded to make a statement of the facts in the case, with a view of apprising the general term of the view the trial court had taken of the evidence, but expressly stating that the statement did not bind any one as to the facts, and then directed a verdict for the defendant, subject to the opinion of the court at general term, to which the plaintiffs excepted. The case is here, therefore, on this order of the trial court, burdened with the -exception last referred to; and the first question that presents itself is as to what disposition shall be made of the case, and upon what principle it shall be considered by the general term.

In Durant v. Abendroth, 69 N. Y. 148, 151, Rapallo, J., speaking for the court of appeals, says:

“This is not strictly, the case of a verdict subject to the opinion of the court, for at the time of directing the verdict for the plaintiff the court ordered the exceptions to be heard in the first instance at the general term. Where a verdict is ordered subject to the opinion of the court without qualification, exceptions cannot be heard; and the only question before the general term is, which party is entitled to final judgment on the uncontroverted facts? And for that reason it is improper to direct a verdict subject to the opinion of the court where exceptions have been taken on the trial of the facts are controverted.”

In Matson v. Insurance Co., 73 N. Y. 310, which was an action brought upon a policy of fire insurance, and the policy contained the provision, in substance, that the defendant should not be liable for a loss occasioned by the use of kerosene oil; and on the trial the defendant’s counsel asked for a nonsuit, on the ground that the0condition above mentioned was violated, and the policy thereby rendered void,—the court denied the motion, and directed a verdict for the plaintiff for the amount of the loss, subject to the opinion of the court at general term, to which defendant’s counsel duly excepted. The court (RAPALLO, J.), says at page 314:

“The case seems to have been considered by the-general term upon the assumption that the fire was occasioned by the use of kerosene, and to have been decided on the ground that, such use not having been habitual, the company was not exempt from liability. The facts stated in the case are not sufficient to show whether the loss was or was not thus occasioned, and therefore ife was not a proper case for a verdict, subject to the opinion of the court. To render the direction of such a verdict proper, all the facts necessary to enable the court to render a final judgments one way or the other must be conceded or established beyond controversy. The cáse as presented is deficient in this respect.”

The. court then proceeds to consider whether there were any questions for the jury, and held that there were in that case, and concludes:

“We are of opinion that there was a mistrial, and that the judgment must be reversed, and a new trial ordered.”

If we are to regard this case as coming to us withoot exception, and without any contest as to the facts, our duty then will simply be to pass upon the evidence in the place of the jury, and determine which party should recover in this action. If, on the other hand, this is simply a motion for a new trial, upon exceptions to be heard in the first instance at the general term, then we have only to consider whether there was any question for the jury, and whether that question is brought before us by the exception finally taken by the plaintiffs to the direction of a verdict in favor of the defendant. We have reached the conclusion that the exception brings before us the question of the plaintiff’s right' to. go to the jury upon the issues in the case, and that the plaintiffs are not concluded by their waiver of the exceptions taken upon the trial, or by the statement of facts of the trial court, which appears in the record before us. Indeed, the learned counsel for the defendant concedes in his points that, if there were any contested ■ questions of fact in the case upon which the plaintiffs, were entitled" to go to the jury, “the court had no power to direct a verdict subject to the opinion of the general term, and in which event there has been a mistrial, and a new trial must be ordered.” So that the question before us is whether we can sustain the plaintiffs’ contention that there was a question of fact for the jury, and, in considering that question, the evidence and the inferences therefrom must be considered as favorably to the plaintiffs as the case will warrant. This involves a somewhat careful review of the" evidence and the facts.

Edward T. Hitchcock, the agent of the • insured, testified that on the 9th of December, 1892, he applied to the agents of the defendant for an insurance upon the steamer of $50,000, and the agents agreed to take $40,000 fire insurance on her and distribute it among severel companies, of which they were agents, $6,000 of which was apportioned to the defendant; the agent of the insured stating that he received a telegram that morning from the owners of the vessel that she was laid up at L’Anse, and to procure fire insurance for her. The agent exhibited this telegram at the time to the defendant’s agents, and signed a blank application for fire insurance, in which the several companies that were to take the insurance were specified, and upon which the words, “ Northerner laid up at L’Anse,” were written in after it was signed by Hitchcock, but in his presence, and with his apparent consent. L’Anse is a point located on the north peninsula of Michigan, on this side of Keweenaw Point, about 700 miles from Buffalo. Upon this application a policy of insurance was prepared, but it was never delivered to the insured. The master of the Northerner, Peter A, McKinnon, testified that the vessel left Buffalo on December 2d, and on the morning of the 7th or 8th of December she got ashore on Keweenaw Point, and was relieved by throwing a part of her cargo,overboard, and she proceeded to L’Anse in a leaky condition. When there, the manager telegraphed to Capt. Ward, of Detroit, who had chartered the vessel for the season, and had control of her, telling him what had happened, and asked him for instructions. “ Ward telegraphed, 1 Better lay her up,’ and we obeyed instructions, commenced laying the Northerner up, got chai ns-out of the locker, cleaned up her some, turned the yawl boats upside down, put the tackles away, and the engineer commenced to disconnect her engine.” He thinks this was the 8th of December; that it took a day to do these things that were necessary to lay her up. That she continued to lie there until the 12th of December, when she caught fire, and was burned. One Capt. Rounds came there the night of the 9th, and assumed to represent the marine underwriters, and directed that the vessel be taken to Duluth. That, without change of position, the vessel was got into readiness to go to Duluth on the night of the 11th of December. Capt. Rounds had agreed to go with them, but at the last moment Rounds refused to go and abandoned the vessel, and, before the fire actually occurred, the master had again changed his mind, and concluded to remain at L’Anse, and to make a slight change of position of the boat, so as to give a more secure position for the winter.

Another witness for the plaintiffs testified that he was the mate of the vessel; that the 7th or 8th day of December she went to L’Anse, where they obtained orders to lay her up, which they proceeded to do, and took steps substantially as stated by the ■other witness for that purpose. On his cross-examination he says:

“ We commenced laying up on the 9th. It was in the morning. ■ We kept at work until the morning of the 10th, and then we began refitting her on the morning of the tenth. We had not completed laying her up when we began to refit her. She burned on Monday morning.. We started to fit her out on the Saturday morning before she burned. We had got the chains up, but we had not put them out. In laying a boat up there it is customary to use a chain to moor her, and that is why we got the chains up ready to put out.”

A telegram was produced from Charles H. Blakosly, one of the owners, dated at Rochester, December 6, 1892, to Eber Ward, the lessee at Detroit, which was as follows: “Where is Northerner ?

Lay her up. Cannot permit her to run further.” This telegram was received by Mr. Ward before he ordered the boat laid up as above stated. Mr. Blakesly testified that when he was advised that the Northerner had met with this disaster, and gone to L’Anse, he did not in any way consent to her proceeding further on the voyage..

John Kilderhouse testified that he had owned a great many vessels, had a good many vessels insured, and testified without objection as.an expert upon the subject, and stated ? ■

“I understand about a vessel being laid up. When you go to an insurance office to get fire insurance, that we are commencing to lay up. When we speak of a vessel being laid up, we simply mean that she has reached the port of safety, with the intention of staying there; and, in this matter of work to be done, some do more and some less. Some longer laying up than others, and some lay up better than others. Sometimes they keep the engine in readiness to work all winter. I have known one to have her boiler ready to work all winter long. I do not think they lay up generally alike; they vary.”

Edward Smith was sworn for the plaintiffs, was a vessel owner, had experience, and was asked as an expert, without objection :

“Q. When you apply for insurance, what do you understand by the term ‘laid up’ ? A. I usually govern myself to have winter fire insurance placed at the expiration of the marine. I don’t think everybody lays up alike. Some do more work than others. Everybody does not take out chains. They turn over their boats, unless they don’t mind much about taking care of their property. The engine is not often so it can be used during the winter, unless the vessel has been ashore, or something that 'required steam to pump her during the winter more than could be done by hand; then it might be kept; it would be cheaper. Seventy-five per cent, of the vessels have ship keepers living on board, and they have lamps, of course. Sometimes it takes several weeks to lay up a vessel.”

The defendant offered no evidence, but lays great stress upon the fact that after the arrival at L’Anse, and when the vessel was substantially laid up under the direction of Capt. Rounds, the master, without authority from the'owners or the lessee of the vessel, and against the express directions of the lessee (Mr. Ward), had concluded to go to Duluth, and had taken some steps to put the vessel in condition to start, but without actually starting or at all changing her position, when this intention was abandoned, and the original intention of remaining at L’Anse for the winter, and being laid up there, was resumed. .

The learned counsel for the defendant admits that, to justify the direction of a verdict, it must clearly appear that the vessel was not “laid up” at L’Anse, within the meaning of the insurance contract, and claims that, taking the whole evidence together, such is the only rational view to be taken of the evidence. In this we cannot concur. There was certainly some evidence to go to the jury upon the question as to whether the vessel was laid up at the point mentioned at the time the insurance was taken and the fire, occurred. It is clear that the vessel was lying in the harbor of' L’Anse, and the men upon the vessel were busy in fitting her for winter quarters at that point at the time the insurance contract was made (the 9th of December); that on the 12th of December, when the fire occurred, all intention of proceeding further on the voyage or leaving this port of safety had been abandoned, and nothing appears to have occurred in the interim to have increased the risk or endangered the vessel; and, without desiring.to express any opinion upon the1 weight of the evidence to influence the jury upon another trial, we are clear that there was evidence, or, at least, there could be drawn inferences from the evidence, taking it altogether, that the "vessel, within the spirit and purpose of the contract of insurance, was laid up at L’Anse, both at the time of the making of the contract and the time of the destruction of th© vessel.

As before said, the policy of insurance was not introduced in evidence. The counsel for the defendant makes several points upon the assumption that the assumed policy had been proved, and its conditions violated by the plaintiffs. It is difficult to see how such objections can be made, predicated upon a paper that is not in the case. A blank form of policy appears in the evdence, which the defendant seems to assume was the kind of policy that would have been issued if it had been filled up, executed, and delivered to the plaintiffs; and he makes the point, based upon a paragraph in the assumed policy, that, by the terms thereof, it was void if petroleum or any of its products of a greater inflammability than kerosene oil of the Unites States standard was kept, used or allowed on the vessel, and that it was the undisputed evidence of the master that there were in the neighborhood of 2,000 barrels of kerosene oil on the vessel, which was being carried as a part of her cargo. Assuming that this point is available under the circumstances, it is not well taken, because it did not appear from the evidence that the kerosene on board of this vessel was of greater inflammability than kerosené oil of the United States standard. Another point is that the assumed policy contained a special provision that “no suit or action on this policy for the recovery of any claim shall be sustained in any court of law or equity * ® * unless commenced within twelve months after the fire,” Assuming, again, that this point is available (there having been no policy proved), it is a sufficient answer to say that this action is not upon the policy. The defendant had refused to deliver a policy, and the plaintiffs were consequently obliged to bring this action to compel a delivery of the policy and payment of the claim. Where the insurance company refuses to deliver the policy of insurance, and resists payment of the loss, on the ground that no. obligation to insure was entered into, it cannot take advantage of a limitation clause that might have been inserted in the policy had one been delivered. Smith v. Insurance Co., 62 N. Y. 85 ; Shaw v. Insurance Co., 69 N. Y. 286 ; Tayloe v. Insurance Co., 9 How. 390 ; Hay v. Insurance Co., 77 N. Y. 235.

A further point is made by the defendant that the agent Hitchcock misrepresented the condition of the boat as being laid up at L’Anse, when it in fact was not so laid up. That was a question of fact for the jury, to be passed upon by it, and depends upon the fact to be found whether the boat was or was not laid up ate the port indicated. Hone ,of the objections last considered impressed the trial court if urged before it, as the verdictwas directed solely upon the ground that the boat was not laid up at the time of the contact of insurance and of the destruction by fire of th© vessel

While the plaintiffs demand equitable relief in this action, and it might well have been treated as one of equitable cognizance purely, the parties seem to have acted qpon the assumption that it was a proper case for the jury, and tin point is made here but what it was. It can be further treated as such, and a recovery can be had upon the parol contract of insurance, if the jury shall find with the plaintiffs. Insurance Co. v. Colt, 20 Wall. 560 ; Ellis v. Insurance Co., 50 N. Y. 402.

The verdict for the defendant should be set aside, and a new trial ordered, with costs to abide event.

All concur.


text:
    Coridon S. Thompson, as Executor, etc., Resp’t, v. George Chick, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 28, 1895.)

    1. Appeal—Direction op verdict.
    Before the trial court is authorized to direct a verdict over the objection of the defendant, the evidence must be substantially without conflict in favor of the theory upon which the verdict is directed.
    2. Landlord and tenant—Notice.
    Where a renting is for a specified time, and the tenant holds over beyond that time with the acquiescence of the landlord and pays rent, a new term is implied equal to the original term; and upon the expiration of such new term, the tenant can abandon the premises without notice,
    3. Same.
    Where a tenant is in possession under an indefinite monthly renting and
    ■ pays his rent in advance, the most that can be inferred as to any agreement on the subject of notice to terminate is that reasonable notice should be . given, and the failure of the landlord to object to the sufficiency of the notice when it is given, and until after the tenant had moved out and tendered the key, is a waiver of regular notice.
    4. Same—Rent in advance.
    The right of the landlord to notice from the tenant of his intention to terminate a lease which provided for the payment of a certain, amount per month for an indefinite period, is not affected by the fact that the rent was not paid in advance, where it was paid for specific months.
    Appeal from a judgment entered on a verdict directed by the court in favor of plaintiff, and from an order denying a motion for a new trial.
    O. H. Hopkins, for app’lt; Mr. Stone, for resp’t.
   WARD, J.

—This action originated in justice’s cdurt of Wyoming county, where the plaintiff recovered a judgment of $93.60 and costs, for rent claimed by the plaintiff of the defendant upon a verbal contract for the renting of premises consisting of a house and lot in Attica, Wyoming county, N. Y. The defendant appealed to the county court, and a new trial was'had before a jury. The jury being unable to agree upon a verdict, the court directed a verdict for the plaintiff, for the amount of his claim; and the defendant appealed from the judgment entered upon that verdict, and bring the case before us.

The plaintiff’s evidence upon the trial in the county court was to the effect that a few days prior to March 15, 1891, the parties met, and agreed that the plaintiff should lease the house and lot to the defendant for a y iar commencing the 15th day of March, and to continue for a year, the rent to be payable monthly; at $10 a month; that, under this agreement, the defendant entered into Eossession of the premises just prior to the 15th of March, 1891. defendant paid $10 on the rent on the 27th of April, another $10' on June 1st, and $10 after defendant vacated the premises. The defendant moved out of the premises about the 1st of June. The plaintiff was going by the premises, and saw them moving out, and defendant told him they were moving to another place. Plaintiff said it did not make any difference to him how many houses the defendant rented, as he should hold him for the rent for the balance of the year. About a week after the defendant moved out, the plaintiff found that the key to the premises had been left with his wife, with the notice that the defendant was going to move from the premises. Plaintiff refused to receive the key.

The plaintiff’s claim for rent was. for the balance of the year, or for nine months, commencing with June 15, 1891. The defendant’s evidence, in which he was sustained by two witnesses, was to the effect that the ageement simply was that he was to pay $10 a month for the premises; was to commence on March 15, 1891; that there was nothing said that the defendant should hire the premises for a year, and "pay $10 monthly, or anything of that kind; he took possession, and vacated the premises, and paid the rent, substantially as the plaintiff's evidence disclosed, having left the key of the house with the plaintiff’s wife at the time he vacated the premises. There was not conflict in the evidence as to the notice or knowledge that the plaintiff had of the defendant’s moving from the premises, about the 1st of June. The learned trial judge directed a verdict for the plaintiff, for the reason that 30 days’ notice had not been given by the defendant of his intention to vacate the premises, and therefore the term had ceased, and the plaintiff could recover for the balance of the year..

Before the court was authorized to direct a verdict .over the objection of the defendant, the evidence must be substantially without conflict in favor of the theory upon which' the verdict was directed. ' Whether the contract was for a year, the rent to be payable monthly, or whether it was simply a contract for the hiring of a month, and renewal of monthly terms by the payment of monthly rents thereafter,with the acquiescence of the parties, was a question for the jury; and in considering that question, we are to give full force to the defendant’s evidence, and take as favqrable a view of it as the evidence will reasonably "permit. Without expressing an opinion as to the full force of this evidence, we are of opinion that the defendant’s evidence did create a question of fact, which should have been submitted to the jury. We shall not attempt to analyze at length the numerous cases upon the subject of tenancies where the termination thereof has been held dependent or not upon notice. The examination of a few leading cases will suffice.

In Gibbons v. Dayton, 4 Hun, 451, in speaking of a case where the rent was payable monthly and in advance, the court'say:

“It is very clear that the tenancy of the intestate was from month to month. Neither party was bound to give any notice to the other in order to terminate the tenancy at the expiration of any month. The landlord could have removed the tenant by summary proceedings, without notice; so the tenant could have lawfully left the premises at the expiration of any month without notice, and without being bound to pay further rent.”

In Adams v. City of Cohoes, 25 St. Rep. 523, where a tenant, who had occupied the demised premises for several years after the termination of his lease, paid rent semi-annually, it was held that the payment of the rent after the experiation of the term created a new terra, expiring at the close of the current year, and requiring no notice for its determination; and the principle there laid down would seem to be that where a renting is for a specific time, and the tenant holds over beyond that time with the acquiescence of the landlord, and pays rent, a new term is implied equal to the original term; and, upon the expiration of such new term, the tenant can abandon the premises without notice. This case was affirmed in the court of appeals (127 N. Y. 175; 38 St. Rep. 678), and the position of this case seems to be sustained by Park v. Castle, 19 How. Prac. 29 ; Austin v. Strong, 47 N. Y. 679 ; Nichols v. Williams, 8 Cow. 13 ; People v. Goelet, 64 Barb. 476; People v. Schackno, 48 Barb. 551.

The court of appeals, in Adams v. City of Cohoes, at page 183, 127 N. Y., and 38 St. Rep. 678, cite with approval Ludington v. Garlock, 29 St. Rep. 600. That case was like the one at bar in its leading features. Ludington sued Garlock to recover a month’s rent, from October 20 to November 20, 1888. On the 20th of April, 1888, Garlock was in possession of the rented premises, under a parol agreement to pay fifteen dollars a month rent, and at that time Ludington required him to pay eighteen dollars per month if he continued to occupy the premises longer than May 1st, as his month would be up the 20th of April. The contract seems to have been to pay -the rent in advance. About the 20th of each month, June, July, August, and September, Garlock paid the monthly rent of eighteen dollars; and on October 19th or 20th the defendant’s boy came to the office of the plaintiff’s agent, laid the key to the premises down before him, and said that the defendant had moved out, and surrendered the premises, and there was the key. The agent told the boy that he would not accept the key, but would hold the defendant for another month’s rent. About ten days before that, the agent had been told by the defendant’s father-in-law that the defendant had got another house, and was going to move, and the defendant vacated the premises on the 19th or 20th of October. The court held, upon this state of facts, that where a defendant is in possession under an indefinite montlv renting, and pays his rent in advance, the most that can be inferred as to any agreement on the subject of notice to terminate is that reasonable notice should be given, and that the failure of the landlord to object to the sufficiency of the notice when it was given, and until after the tenant had moved out and tendered the key» was a waiver of regular notice. Judge Merwin who pronounced the opinion in that case, makes a careful examination of the leading cases upon the subject, and concludes :

u When the defendant paid the month’s rent, there became a fixed and definite tenancy for a month. There was no agreement by the defendant to take the premises for any longer period. If, however, he held over or paid for any month, the tenancy was for that time renewed, and, as renewed, expired at the end of the month, unless some further action was taken.”

It is true, in the case at bar the rent for the month succeeding the first was not paid strictly in advance, but each ten dollars was paid for specific monthly periods, and accepted as such; and as to the creation of' monthly tenancies after the expiration of the first term by the payment of monthly rent, with the acquiescence of the parties, it is immaterial whether the payment be at the commencement of the month, or at a later period in the month. Then, if notice were required,, under the last case cited, the question should have been submitted to the jury as to whether such notice was a reasonable one, and whether the plaintiff 'had not waived the giving of the regular notice by failure to object to the notice as insufficient

We have reached the conclusion that it was error in the court to direct a verdict for the plaintiff. The judgment and order should be reversed, and a new trial ordered in the county court with costs to abide event All concur.


text:
    Alfred H. Smith et al., App’lts, v. John Munroe et al., Impleaded, etc., Resp’ts.

      (Supreme Court, Appellate Division, First Department,

      Filed January 24, 1896.)

    1. Assignment fob benefit of creditors—Fraud.
    The advancing of money to a firm while insolvent is not fraudulent on the part of either the borrower or lender.
    2. Same.
    The concealment of such transaction is not a fraud, for the reason that its divulgence might precipitate disaster and prevent the object of the loan.
    3. Same. 1
    . Where an insolvent firm applies for loans of money to aid it in its business, and such loans are made and kept secret, and the borrowers promise to prefer the lenders in the event of their being compelled to make an assignment for the benefit of creditors, this does not make the preferred creditors, whose claim is paid before the assignment is attacked, liable in equity to other creditors.

      4. Same.
    A preferred creditor, whose claim is paid before the assignment is attacked by the other creditors, cannot be compelled to make restitution.
    Appeal from a judgment on an order sustaining a demurrer to the complaint.

      Franklin Bien, for app’lts; G. A. Strong, for resp’ts.
   PATTERSON, J.

—The general assignment of Wickham & Co. to Newitter was valid as between the assignor and assignee. Before it was attacked by creditors the preferred -indebtedness of Munroe & Co. was paid. It was an honest debt, actually due, and, as said before, the trust to pay which was fully performed before the assignment was challenged. Ordinarily, that would suffice to protect creditors situated as Munroe & Go. were. Knower v. Central Nat. Bank, 124 N. Y. 560 ; 37 St. Rep. 89. But it is claimed by the plaintiffs that circumstances intervene to render the doctrine of the case cited inapplicable here. It is alleged in the complaint that Wickham & Co., the assignors, being insolvent, and having "been so for a long time, borrowed sums of money on bankers’ credits from the defendants Munroe & Co.; that these amounts were loaned by Munroe & Co. with full knowledge of such insolvency; that such loans were to be kept secret; that, in case Wickham & Co. should make an assignment, Munroe & Co. should be preferred for their claims; that, had the-plaintiffs (judgment creditors seeking' to avoid the assignment) ■known of their debtors’ insolvency, and of the secret arrangement,, they would not have sold the merchandise to the assignors. And on these allegations, coupled with the averments necessary to a standing in court to attack the assignment, the plaintiffs claim they have presented a prima facie case entitling them to relief against the defendants Munroe & Co., to compel them to make restitution of the money paid them by the assignee.

On demurrer to the complaint, it was held, at special term, that facts sufficient to constitute a cause of action were not pleaded, and in this conclusion we concur. The advancing of money to Wickham & Co. while that firm was insolvent was not fraudulent on the part of either the borrower or lender., That very transaction may have been resorted to to extricate the borrower from insolvency. Concealment of the transaction was not a fraud, because its divulgence might have precipitated disaster, and prevented the object of the loan. Nor were insolvency and suppression of'knowledge thereof necessarily fraudulent in Wickham & Co.’s dealings with the plaintiffs. Nichols v. Pinner, 18 N. Y. 295. Something more is required to render them so. The complaint fails to allege that Wickham & Go. neither intended nor expected to pay for the goods bought of the plaintiffs, or believed or had reason to believe they would not be able to pay for them. Thus far, then, for all that appears in the complaint, Wickham &■ Co., being insolvent, applied for loans of money so Munroe & Co. to aid them in their business. These loans were made, and th.ey were kept secret. But something more took place. The borrowers promised to prefer the lenders in the event of their being compelled to make an assignment for the benefit of creditors. Even this superadded fact does not make Munroe & Co. liable in equity to'the plaintiffs. The conditional agreement was not a fraud on creditors. As was said in Nat. Park Bank v. Whitmore, 104 N. Y. 304; 5 St. Rep. 716 :

“A failing debtor may make an assignment preferring one or more creditors because he is under a legal, equitable, or moral obligation co do so, or he may do it from mere caprice or fancy, and the law will uphold such an assignment honestly made. If he may make such an assignment without any antecedent promise, why may he not make it after and in pursuance of such a promise? How can an act otherwise legal be invalidated because made in pursuance of a valid or invalid agreement honestly made ? In Smith v. Craft, 11 Biss. 340; 12 Fed. 856, Judge Gresham held .that such a conditional agreement for a future preference was a fraud upon creditors. But in the same case (17 Fed. 705), upon a rehearing, Judge Woods held that the same agreement was not fraudulent, and in a very satisfactory opinion showed that such an agreement as we have here, for a future preference in ease of insolvency, is not a legal fraud upon creditors. See, also, Walker v. Adair, 1 Bond, 158; Fed. Cas. No. 17,064; Anderson v. Lachs, 59 Miss. 111; Spaulding v. Strang, 37 N. Y. 135; 38 Id. 9; Haydock v. Coope, 53 Id. 68.”

Hone of the acts complained of, segregated or aggregated, constituted a cause of action against Munroe & Co., and the interlocutory judgment sustaining the demurrer should be affirmed, with costs and disbursements.

All concur.


author: BARRETT, J.

text:
    Simon W. Merrill, App’lt, v. Wakefield Rattan Company, Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed January 24, 1896.)

    1. Appeal—Dismissal op complaint.
    Where the complaint is properly dismissed, the appellate court will not consider the point upon' which the dismissal was had, nor the reasons given by the trial court therefor.
    8. Master and servant—Termination op employment.
    The facts, in this case, were held to establish that, even if any contract of employment between plaintiff and defendant existed at any time, it was terminated by mutual consent.
    Appeal from a judgment dismissing the complaint.
    Plaintiff is a resident of Hew York City, and defendant a Massachusetts corporation, with its principal office in Boston. Prior to January11, 1892, plaintiff had been for a long time general manager of defendant’s office, at 924 Broadway, in the city of Hew York, at an annual salary of $2,500. In March, 1892, a new corporation was formed—the Wakefield Rattan Company of Hew York—-which took over the Hew York business of the defendant. The title to the property in Hew York was transferred to it, and it opened a bank account in its own name. Plaintiff became the president and director of this company. Ho salary attached directly to the offices, but his old one continued in force, and was paid by checks of the Hew York company. His duties remained, in character, the same ; but his services now forwarded si business which, in name, belonged, not to defendant, but to the Rew York company. On February 15, 1893, defendant wrote to plaintiff, requesting his resignation as president and director of the Rew York company, and that his connection with the business cease upon its acceptance. The next day he wrote, tendering his resignation unconditionally. The day succeeding, defendant wrote, accepting the resignation, authorizing him to draw his salary to March 1st, and directing him to terminate his connection with the company at the close of business the next day, February 18th. He sues to recover the unpaid balance of salary for the year 1893 at the rate of $2,500 per annum. He was defeated upon the ground that he entered the service of the Rew York company on March 11, 1892, and that the defendant ceased to be liable to him from that date.
    Bacon & Van Steenbergh, for app’lt; John S. Davenport, for resp’t.
   BARRETT, J.

— We need not consider the point upon which the complaint was dismissed, nor the reasons given by the learned judge for the -dismissal. It was properly dismissed, if, for any reason the plaintiff had no legal claim against the defendant. Row, assuming that the contract relation between the parties was unaffected by the formation of the Rew York company, or by the position in that company which the plaintiff took, still that contract relation terminated by what transpired when the plaintiff finally retired. At that time he not only resigned from the Rew York company, but completely severed his connection with the defendant’s business. He did not resign with a reservation, did not even suggest a Continuing contract with the defendant, and never again offered his services. On the contrary, although his resignation occurred on the 18th of February, he accepted his salary for the current month, namely, until the 1st of March, and then, without a word of complaint or objection, turned over to his successor the keys of the store, and the books of account and papers in his possession. It is quite immaterial how the resignation was brought about. The defendant requested it, and the plaintiff gave it Possibly—probably, even — a refusal to resign would have been followed by a dismissal, but still there was no compulsion. There was a strong intimation of what was impending, but there was in fact no dismissal and no breach. The contract was canceled by mutual consent, and that is necessarily the end of plaintiff’s case.

The complaint was properly dismissed, and the judgment appealed from should be affirmed, with costs.

All concur.


text:
    In the Matter of a Summary Proceeding to Compel Rollin Tracy, an Attorney, etc.

      (Supreme Court, Appellate Dimson, First Department,

      Filed January 24, 1896.)

    1. Attorney and client—Collections.
    An attorney, who takes a claim for collection on a contingent fee of a certain percentage of the recovery and settles with the debtor for part cash and part notes, is entitled only to retain the stipulated percentage of the cash, though he voluntarily turns over to his client the notes and securities.
    3. Same.
    He has no right to retain the balance of the cash either in payment or as security for any amount he will be entitled to on the payment of the notes.
    3. Same—Summary proceeding.
    To prevent the exercise of the court’s summary power in dealing with such a case, the attorney is required to do something more than make assertions by way of counterclaim.
    Appeal from an order directing the payment of money.
    On April 6, 1893, the petitioner, Livingston Jaques, placed with Eollin Tracy, the appellant, a claim against one Hollins for collection. At this time he paid appellant $50 on account of prospective disbursements. The receipt therefor reads as follows:
    “April 6th, 1893.
    “ In Ee Livingston Jaques vs. Hollins.
    “Eeceived, on account of disbursements, $50, in this case ; and Mr. Jaques is to advance funds necessary for disbursements as same may be needed, and aid with his advice and knowledge of facts; and, in case of recovery, I am to have twenty per cent, of the recovery, and, in case of no recovery, no pay.
    “Eollin Tracy.”
    Appellant on April 13, 1893, obtained from Hollins, in settlement, a cash payment, and the delivery of four notes secured by collateral. In February, 1895, after numerous demands for information, petitioner obtained from appellant an admission that $1,547.28 had been collected. The order appealed from directs payment of eighty per cent, of this amount, less $400 already paid to petitioner. The appellant claims that the relation of client and attorney at law did not exist between himself and petitioner; also, that he was entitled to retain the money collected as security for his commission on the unpaid balance of the claim; also, that the amount in his hands was subject to a counterclaim for prior services and disbursements in another matter.
    Charles Duane Baker, for app’lt; William H. Sage, for resp’t.
   BARRETT, J.

— It is clear that the relations between the parties was that of attorney and client. Mr. Jaques sought the services of a lawyer, and not of a mere collecting agent. The receipt plainly indicates the understanding, and all of the facts point to the professional relation. It is equally clearly that the attorney was entitled to his percentage only upon the amount collected, and the petitioner was entitled to a settlement on that basis, from time to time, as collections were made. Otherwise he might have been compelled to wait years for his money—as long, in fact, as the attorney should insist that there was a chance of collecting anything more. It is true that, before the commencement of this proceeding, the attorney voluntarily turned over to the petitioner the notes and collateral but this in no way alters the latter’s right to payment. Conceding that the former had a' lien thereon, surrendering it does not affect the petitioner’s right to-eighty per cent, of the sums previously collected, nor does it affect the attorney’s right to twenty per cent, of such sums as may hereafter be collected by the respondent.

As to the counterclaim, we think the attorney has wholly failed to make out a case. This counterclaim rests upon the unsupported statement of the attorney. We cannot, in this connection, overlook the fact that the attorney’s course with regard to the subject of the application was anything but straightforward. His credibility is thus weakened. When, therefore, we find that this counterclaim was not made at a time when, if just, it would have been natural to assert it, that it is fully denied, and that such denial is not only credible in itself, but is corroborated in various particulars by disinterested witnesses, we cannot but conclude that it is an afterthought, that it is without merit, and that it is put forward merely to delay and obstruct the respondent in his effort to secure payment of what is clearly due him. The petitioner was bound to make out a clear case against the attorney (In re Knapp, 85 N. Y. 284), and he has done so. To prevent the exercise of the court’s summary power in dealing with such a case, the attorney was required to do something more than make assertions by way of counterclaim. These assertions should have been sufficiently supported to call for more formal investigation. The client should not be required, under such circumstances as these, to spend time and money in collecting from the attorney that to which, upon his side of the case, he is plainly entitled (Bank v. Todd, 52 N. Y. 489 ; Waterbury v. Eldridge, 24 St. Rep. 439), and agaipst which there is no well-founded or substantial offset.

The order appealed from should be affirmed, with $10 costs and the disbursements of the appeal.

All concur. ,


text:
    John H. Meyer, App’lt, v. Clarence Lexow, as Receiver, etc., Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed January 24, 1896.)

    1. Receiver—Action.
    A temorary receiver cannot charge the estate in continuing its business, or the deposition of its property, or"the employment of servants by express agreement, where he is not authorized so to do by the court or the statute.

      2. Same.
    The right of action upon the receiver’s promise to pay, implied or express, is ordinarily against him as an individual; and the same rule applies to the quantum meruit count.
    Appeal from a judgment in favor of plaintiff, entered on the decision of the court.
    Henry B. Kinghorn, for app’lt; Bernard J. Isecke, for resp’t.
   BARRETT, J.

—Upon the 7th of April, 1893, the defendant was appointed temporary receiver of the property of the E. J. Keldenberg Company. He was not directed by the court to sell the property, and his authority was limited to that conferred by sections 1788 and 1789 of the Code of Civil Procedure. The plaintiff claims that he was employed by the defendant as a truckman, and that the defendant, through an agent, agreed to pay him $28 per week. He also claims a small sum upon a quantum meruit.

The defendant was not authorized, as receiver, to make the contract sued upon, and the plaintiff’s complaint should have been dismissed. If Mr. Lexow was liable at all, it was individually. The case is directly within the rule laid down in Sayles v. Jourdan, 19 St. Rep. 349, and Rogers v. Wendell, 54 Hun, 540 ; 28 St. Rep. 301. These authorities follow the principle enunciated in the cases against executors, administrators, trustees, and assignees, as such. New v. Nicoll, 73 N. Y. 127 ; Schmittler v. Simon, 101 id. 557 ; Willis v. Sharp, 113 id. 591 ; 23 St. Rep. 670 ; Mygatt v. Wilcox, 45 N. Y. 309 ; Ferrin v. Myrick, 41 id. 319. Here the receiver did not attempt to exempt himself from individual liability by an express agreement to that effect. Nor could he charge the estate even by express agreement, as he was not authorized by the court or the statute to continue the business, or •to dispose of the property, or to employ a truckman. A receiver cannot, as was said by ANDREWS, J., in Vilas v. Page, 106 N. Y. 451 ; 11 St. Rep. 416, “ of his own motion contract debts chargeable upon the fund.” He may incur expenses necessary for the preservation of the property ; but even these should, as a rule, be incurred under the authority of the court. If properly made, they will be allowed upon his accounting. The right of action, however, upon a receiver’s promise to pay, is, ordinarily, against the individual. He has no responsible principle behind him for whom he may so promise. This rule applies,- logically, to an implied as well as to an express promise. The person employed must look to the person employing him. That is the gist of the matter. The same rule applies to the quantum meruit count. The employment, if made, as it was not authorized offi.-’ dally, was necessarily personal.

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

All concur.


text:
    Anton Exhorn, Resp’t, v. Paulina Exhorn, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed Jan’y 24, 1896.)

    Limitation—Mistake—When accrues.
    The statute of limitations begins to run against a cause of action to re- „). form a deed on the ground of mistake at the time of the delivery of the deed, and not at the time of the discovery of the mistake.
    Appeal from a judgment in favor of plaintiff, entered on the decision of the court.
    Frederick Seymour, for app’lt; Frederick A. Botty, for resp’t.
   BARRETT, J.

—This action was brought to reform a referee’s deed by inserting the plaintiff’s name as cograntee with the defendant. No fraud is alleged, and the case rests solely upon an allegation of mistake. The deed was delivered in July, 1877, and the action was commenced in August, 1894. The defendant pleads the ten year statute of limitations. The plaintiff acknowledges that this would be fatal but for the fact that he did not discover the mistake until October, 1884. But the running of the statute did not depend upon the discovery of the mistake. That was the general rule in equity before the Code. The decisions of courts of equity then placed mistake upon the same footing in this regard as fraud. Under the Code, however, the rule as to discovery of the facts is limited to fraud; and all other cases are excluded from its operation.

As was said by Allen, J., in Oakes v. Howell, 27 How. Prac. 151:

“ From the absolute obligation of the present statute upon the courts, and its clear application to every case that can arise, and to every form of action, by every principle of statutory construction the cases of mistake and accidents are excluded from the exceptions in favor of actions for relief from fraud.”

This case has been repeatedly cited with approval, and was followed in Hoyt v. Putman, 39 Hun, 402, 406, and Sprague v. Cochran, 70 Hun, 513 ; 53 St. Rep. 617.

We think the rule is sound. The court cannot read the discovery provision into section 388 of the Code of Civil Procedure. The legislature in this connection acted advisedly and deliberately, both with regard to inclusions and exclusions. Had it been so intended, it would have been as easy and simple to provide for the discovery of facts constituting mistake as of facts constituting fraud. The legislature has not done so, and consequently the cause of action here accrued upon the delivery of the deed.

Upon the facts, however, we have no doubt that in July, 1882, the plaintiff had full knowledge that his wife was the sole grantee in the deed. He made an affidavit then, stating that he had read over his wife’s affidavit in which this assertion appears, and that his wife’s affidavit was true to his own knowledge. There are other facts, too, from which the conclusion is inevitable that in the year 1882 plaintiff was fully acquainted with the circumstance of which he now complains. Indeed, the case throughout rests upon a very slight foundation. The evidence of mistake was far from clear or convincing; and we think that the complaint should have been dismissed upon the merits. The truth is that the plaintiff put the property in his wife’s name at a time when they were living happily together. Now that they have separated, he naturally wants the property back. As that is impossible, he would, at least, like to share it. The law cannot help him. Upon both the facts and the law, the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

All'concur.


author: WILLIAMS, J.

text:
    Julius Robertson, Resp’t, v. National Steamship Company, Limited, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed Jan’y 24, 1896.)

    1. Contracts—Validity—Performance.
    Under a through bill of lading from Havre to New York, where the injury to the freight is received while it is being transported from Havre to London, and the freight is not actually in the possession of the defendant or shipped upon its steamer until its arrival and delivery in London, ■ within the meaning of the contract, the defendant is not liable for such injuries under the bill of lading.
    2. Same.
    The laws of England are not applicable to such contract, where it was made in France and was to be performed mainly outside of England.
    Appeal from a judgment in favor of plaintiff.
    The action was brought to recover damages for injuries to a quantity of goatskins which were shipped from 'Havre, France, consigned to the plaintiff in New York. The shipment was made - under a bill of lading, executed in France, bearing the heading, “Through from Havre to New York,” wherein among other things, the defendant acknowledged the receipt of the skins in good order at Havre, to be forwarded by the steamer Wolf to London, and to> be there transshipped upon the steamer Canada for New York, subject to certain exceptions and conditions therein contained. Among these were the following: That defendant should not be liable for loss or damage resulting from sweating, rain, spray, or inherent deterioration, nor (under the through bill of lading) where the damage was done while the skins were not actually in the possession of defendant, or shipped on board its steamer. The skins were transported by the steamer Wolf from Havre to Southampton, thence by railroad to London, and thence by defendant’s steamer Canada to New York. Neither the steamer Wolf nor the railroad were owned or operated by the defendant, but by outside parties. When the skins reached the plaintiff in New York, it was claimed they had been considerably injured by having been wet. The trial court decided that the injury to the skins was not caused by any negligence or breach of duty on the part of the defendant, and that whatever injury there was resulted from causes for which the defendant was not responsible; that its liability was only for such injuries as resulted while the skins were actually in its custody in London or New York, or while being transported on its steamer from London to New York.
    E. P. Wheeler, for app’lt; John Chetwood, for resp’t.
   WILLIAMS, J.

—There was a conflict of evidence as to where the skins were injured, and as to the cause of such injury. We are of opinion the decision of the trial court should be sustained, and the judgment affirmed. The finding that the cause of the injury was within exceptions—sweating, rain, spray, or inherent deterioration—is supported by the evidence. The trial judge heard the evidence, and saw and heard the witnesses produced before him; and his conclusion as to the facts should not be disturbed. More than this, there was evidence tending to show that the injuries to the skins were received while they were being transported from Havre to London. For such injuries the defendant is not liable under the bill of lading. It was a through bill, from Havre to New York, and the skins were not actually in the possession of the defendant, or shipped upon its steamer, until their arrival and delivery in London, within the meaning of the contract.

The contention that the provisions of the bill of lading were illegal, under the statutes and laws of England, should not be upheld. Even if such statutes were applicable to such a contract when made in England, and the laws of England were as claimed, they are not applicable to this contract, because it was made in France, and was to be performed, mainly, outside of England. It was a good contract under the laws of New York. Reed v. Express Co., 48 N. Y. 466 ; Ricketts v. Railroad Co., 59 N. Y. 637. We think the contract was one the parties might legally make, and that it was binding upon them.

The judgment should be affirmed, with costs.

All concur.