author: Yan Brunt, P. J.

text:
    The People, Resp’t, v. Morris Spiegel, App'lt.

      (Supreme Court, General Term, First Department,

      Filed January, 1894.)

    1. Appeal—Objection.
    The mere fact that, during the progress of a long trial, improper or incompetent evidence is admitted, to which the attention of the trial judge has not been called, affords no reason for disturbing the judgment.
    2. Criminal law—Indictment.
    The indictment, in this case, was held to state sufficient facts to constitute the crime defined by §379 of the Penal Code.
    3. Juror—General incompetency.
    The discretionary right of the court to reject a juror for general' incompetency was upheld under the facts of this case.
    4. Evidence—Irresponsive. ,
    Striking out evidence as irreponsive is the exercise of the discretion of the trial court.
    5. Same.
    Where an answer is in part competent, it is not error to refuse to strike out the whole answer on the ground merely that it is irresponsive.
    6. Appeal—Charge.
    An instruction that, if the jury are convinced, beyond a reasonable doubt, of the guilt of the defendant, they may convict, no matter what opinion they have as to the testimony of a certain named witness, is not erroneous.
    7. Same.
    Where the proofs of loss furnished are, by their terms, necessarily intended to constitute a claim for indemnity, the refusal of a request to charge, based upon the assumption that it had not been intended to present a claim, is correct.
    8. Same.
    Error cannot be predicated upon a refusal to present additional requests to charge, to which no exception was taken.
    9. Evidence—Documentary.
    Where documentary evidence, taken from the prisoner by search warrant, is introduced by the people, a reversal, if no exception has been taken to its admission, is not obligatory..
    Appeal from judgment of the court of oyer and terminer, convicting the defendant of the crime of presenting and causing to be presented a false and fraudulent claim for the payment of a loss upon a contract of insurance, knowing it to be such.

      Charles Daniels, for app’lt'; H. B. B. Stapler, for resp’t.
   Yan Brunt, P. J.

The statute under which the defendant is indicted is as follows: “ A person who knowing it to be such either presents, or causes to be presented, a false or fraudulent claim or any proof in support of such a claim for the payment of a loss upon a contract of insurance * * * is punishable by imprisonment for not more than , five years, or by a fine of not more than $500, or by both such fine and imprisonment.”

The indictment against defendant, after alleging that the insurance company of North America was a corporation at the times in the indictment mentioned, lawfully doing business in the city, county and state of New York as an insurer; and that Morris Spiegel, the defendant, was at said times doing business in. and by the style of A. Blum, Jr.’s, Sons,.and that said company had duly insured said Spiegel to the amount of $7,000 against loss or damage by fire upon certain goods, chattels and merchandise belonging to him; further alleged that said Spiegel fraudulently and knowingly did feloniously present and cause to be presented to said insurance company of North America a certain false and fraudulent claim for the payment of a loss upon said contract of insurance wherein and whereby it was claimed by said Spiegel that a loss had been sustained by him by reason of said fire and the destruction and damage occasioned thereby to the goods, chattels and merchandise contained in said building at the time of said fire, and so insured to the extent of $70,221.79; and that said Insurance Company of North America was then justly indebted to said Spiegel by reason of said loss, damage and contract of insurance, in the sum of $7,000, which said claim was then and there false and fraudulent in this, to wit: that a loss had not been sustained by said Spiegel by reason of said fire, and the destruction and damage occasioned thereby to the goods, chattels and merchandise contained in said building at the time of said fire, and so insured, its aforesaid, to the extent of $70,221.79, and said insurance company was not then justly indebted to said Spiegel by reason of said-loss, damage and contract of insurance in the sum of $7,000, all of which he, said Spiegel, then and there well knew, against the form of the statute in such case made and provided and against the peace of the People of the state of New York and their dignity. To this indictment the defendant pleaded not guilty, and upon the trial before the court of oyer and terminer was convicted by the' jury, and from the judgment thereupon entered this appeal is taken.

To attempt a statement of the evidence offered or of the facts claimed to have been established upon this trial would be impossible within the limits within which this opinion should be kept, and we will content ourselves with discussing as briefly as may be those points raised upon the part of the appellant, which seem to call for discussion and consideration.

In the brief submitted upon the argument of this appeal a very large number of errors in the admission of evidence are called to the attention of the court, but in almost every instance no exception was taken to the admission of the evidence, and although such an exception is not necessary in order that the court may reverse a judgment where in its opinion injustice has been done, the mere fact that during the progress of a long trial improper or incompetent evidence may have been admitted, to which the attention of the trial judge has not been called, affords no reason for disturbing the judgment. We shall, therefore, proceed to discuss only those questions which were properly raised, or which seemed to be of sufficient dignity to call for consideration.

The first objection raised is that the facts stated in the indictment are not sufficient to constitute a crime.

It is urged that the indictment shows that the Insurance Company of North America had made a policy of insurance whereby it insured the defendant to the amount of $7,000 against loss or damage by fire, and that at. the time when the appellant presented his proof of loss the contract of insurance was in full force and effect, and that while said contract was in full force and effect, the fire occurred by which certain loss and damage were occasioned to the goods insured; that in order that the indictment should properly charge the presentation by the defendant of a false and fraudulent claim under the statute, it ought to have alleged that a loss had not been sustained by the defendant by reason of said fire, and the destruction and damage occasioned thereby to the property insured to the extent of $7,000; and that it was insufficient to allege that the defendant’s claim against the insurance company was false and fraudulent because his loss was not $70,221.79; that it was necessary only that his loss should be $7,000 to make his claim an honest and just one. «

This criticism upon the indictihent seems to have been first raised upon this appeal. But that it has no foundation is seen upon a very brief consideration of the allegations of the indictment. The crime charged is fraudulently and knowingly presenting a false and fraudulent claim for the payment of a loss under his contract of insurance by the defendant. The allegation in the indictment is that the defendant presented a claim for the payment of a loss whereby it was claimed by the defendant that he had sustained damage by fire to the extent of $70,221.79, and that the company was justly indebted to him by reason of said loss and contract of insurance in the sum of $7,000. The indictment then alleges that the appellant’s loss was"not $70,221.79, and that the company was not indebted to him in the sum of $7,000, which facts, if established, proved the presentation of a false and fraudulent claim for the payment of a loss upon a contract of insurance, which was a compliance with the requirements of the statute. The gravamen of the charge is that the appellant, knowing that the insurance company against whom he presented his claim was not indebted to him in the amount claimed, falsely and fraudulently magnified his loss and claimed the whole amount insured.

It appears from the evidence in this case that under the contract of insurance, in order that the Insurance Company of Rorth America should become indebted to the defendant in the total amount of its policy which was $7,000, it was necessary that the loss which defendant sustained by the fire should be $85,000, there being other insurances on the property to the amount of $28,000, and by the terms of his contract of insurance, the Insurance Company of Rorth America was not to be liable for a greater proportion of any loss than the amount insured should bear to the whole insurance whether valid or not covering such property. The learned trial judge charged the jury that this was not a case of extravagant estimate; that the defendant could not be found guilty under the indictment if he had simply gone beyond even the highest valuation of the property which he might possibly have made, if it was merely an extravagant estimate; that there must be back of it and under it the intent to cheat and defraud; or, in other words, he must have passed the limit where an honest though extravagant estimate ends, into the region where fraud itself lurks and lives ; and further that it was not sufficient in order to convict defendant that the jury should find that he had not sustained a loss of $72,000 or thereabouts; but that not having sustained a loss of $35,000 the amount of his insurance, he knowingly and with the fraudulent intention of inducing the insurance companies to pay over the amount insured magnified his loss far in excess of the amount of such insurance. If the jury found these facts the charge contained in the indictment of the presentation to the Insurance Company of Rorth America of a false and fraudulent claim would be established.

It is also alleged that the court erred in rejecting one of the jurors who had been summoned upon this trial, upon the ground that the juror showed himself to be both competent and impartial, and that there was no evidence which could satisfy the court in the exercise of its sound discretion that he could not try the case impartially and without prejudice to the substantial rights of the public. The juror does notseem to have been excluded upon the ground of actual bias, but upon the ground of his general incompetency; and the court seems to have held from what appeared before it upon the examination of this juror that he was not competent to serve, because of his possible unfamiliarity with the language, and because the situation of his business was such that his attention would be distracted; and it found that the juror was not what could be called a competent juror in such a case as the one at bar. Findings of the court of this kind should not be lightly interfered with. The question as to the capacity of a juror of foreign nationality to understand the language in which court proceedings are conducted, his general intelligence, his power of comprehending the evidence as offered by the witnesses, and many other points, must necessarily be considered by the court determining the general competency of a juror. It is impossible to photograph upon the record the hesitation, the evident want of comprehension, the manner and the precise character of the answers of the juror, and these all, necessarily, have great weight with the court in determining the question as to the competency of the juror. It is evident upon reading the examination of the juror in question that he did not comprehend all the questions put to him, and how far this want of comprehension existed, it is impossible for us to tell. We do not think that the juror was so clearly shown to be competent, that we should reverse the conviction upon such a ground.

The defendant at the time of the fire in question and for some time previous thereto had been engaged in the city of New York in the business of manufacturing and importing wines and liquors, and it was for alleged damage to his stock in trade at his place of business, 101 and 103 Broad street, in the city of New York, caused by a fire occurring on the 16th of December, 1891, that the alleged claim against the Insurance Company of North America was presented. It was urged upon the part of the people, and testimony tending to show that fact was offered, that after the occurrence of the fire, by which the loss was comparatively small, the defendant commenced doctoring his stock by the addition of bitter almonds shown to have been recently purchased by him, and, in other ways, for the purpose of making his loss appear much greater than it really was. Among the witnesses examined was one Vincent, a distiller and compounder of liquors, who was examined as an expert, and who testified to testing certain samples taken from the stock of the defendant. He was asked upon cross-examination the following question: “Q. I understand that the other side say that there was a large amount of bitter almond in the wine. Was there any larger amount of bitter almond, or as large an amount of bitter almond that you could tell by appearance ? ”

The .witness answered: “ I have seen it in several wines quite uniform—the quantity. At first, when I tested the wine, I thought it was an accident because there was pretty much in it; and then when I tasted the others I found it was the same as the first, and I thought it was probably an accident from the fire; but then uniformity in all the tests had appeared to me as if it was purposely put.” This witness was examined in French, and as soon as the answer was interpreted the counsel for the defendant objected to it on the ground that it was not an answer to his question, and moved to strike it out upon the ground that it was irresponsive, which motion was denied and an exception taken. The sole ground of the objection was that it was irresponsive; not that the evidence was incompetent and improper. It is undoubtedly true that where an answer is irresponsive and the testimony is incompetent, the method of raising the question is to' move to strike out the evidence upon these grounds. But merely asking the court to strike out evidence as irresponsive is asking the court to exercise its discretion simply, upon evidence in respect to which no question of competency is urged, but only that it should not appear upon the record in response to the question asked. The rule in respect to evidence of this kind is that in order that error shall be predicated of a denial of a motion to strike out, the ground must be both that it is irresponsive and incompetent, thus placing the objection upon the same ground as if a proper question had been asked to bring out the evidence and it had been properly objected to. And, further, the motion was to strike out all the answer. It is clear that a portion of the answer was competent. The witness, as an expert, was stating what he found ; and it was only his conclusions from what he found that perhaps might be the subject of criticism. The motion was not limited to this portion of the answer, but covered the whole, and therefore the granting of the motion was within the discretion of the court, there being some portions of the answer which were competent evidence.

Another point urged is the claim that the court erred in its charge to the jury in respect to the witness Blais, who was examined upon the trial. This witness who gave testimony which, if true, was highly detrimental to the defendant, was shown to have been of more than doubtful character; and it was claimed upon the part of the appellant that all of the material portions of his testimony were false.and induced by reason of the promise of immunity upon the part of the district attorney, and that no reliance should be placed upon it.

The learned court in the course of its instructions to the jury charged among other things as follows: “ This case is such that you may pass upon it in determining this defendant’s guilt without even considering the testimony of Blais if you wish to. I charge you that there is sufficient evidence in this case apart from anything Mr. Blais said upon which you can find a verdict of guilty if you are convinced beyond a reasonable doubt from that other evidence.” To this direction an exception was taken. It is urged that whether there was sufficient evidence without the testimony of Blais to convict the defendant was not for the court, but for the jury to decide. And in support of this proposition (which hardly needs the citation of authorities) certain authorities are cited, notably the case of McKenna v. People, 81 N. Y., 360. In that case the court charged the jury that if they believed the evidence offered by the People to be true, they would be justified in finding the prisoner guilty—language very different from that used in the case at bar. By the charge now under consideration the court left to the jury for their consideration every element in respect to the guilt of the defendant. All that the instruction to the jury meant was that if Blais’ testimony was stricken from the case he would still submit the question of defendant’s guilt to them just the same, and would not instruct the jury that there was not sufficient evidence to convict, but advise them to acquit, which advice they would be bound to follow. In other words the evidence of Blais having been assailed, the court instructed the jury that if they were convinced beyond a reasonable doubt of the guilt of the defendant by the other evidence in the case, they were justified in finding a conviction. Suppose the court charges a jury in any criminal case—and do not they so charge in every case?—that if the jury are satisfied from the evidence beyond 'a reasonable doubt of the defendant’s guilt, they may convict him, and what more is there in the charge in question ?

The court simply said, “strike out Blais’ evidence; and if, without his evidence, you are convinced, beyond a reasonable doubt, of the guilt of the defendant, you may convict.” And nothing else. There was no direction to convict; no statement that if they believed the evidence upon the part of the people, they must convict; but a simple instruction, that if they were convinced, beyond a reasonable doubt, of the guilt of the defendant, they might convict, no matter what opinion they might have abont Blais’ testimony.

The next question presented is an error claimed to arise from a request to charge. The defendant’s counsel asked the court to charge that if the defendant, through his agents, at the time of presenting the proofs of loss, stated to the insurance company, or its agent, that he did not intend to claim the payment of any specific sum of money, and only asked for an estimate of the loss by appraisers, to be hereafter appointed or otherwise, then he must be acquitted. The court refused so to charge, and an exception was taken.

We have examined the case in vain to find any foundation for the request under consideration. We find no evidence that the defendant, through his agent, at the time of presenting the proofs of loss, stated anything to the insurance company, or its agents, in reference to his claim, except that which was introduced in his proofs of loss.

Our attention is called to certain statements made by the. defendant to one Walton, a fire adjuster. But Walton was an agent of the defendant, and if is clear upon examining Walton’s whole testimony in this respect that it does not support the contention that the proofs of loss were not intended to present a claim. He testifies to certain conversations he had with defendant after he had got the schedule. He says he asked defendant if it was a correct statement of damage, and the defendant said: “ So far as the damages are concerned I can’t say precisely, for there would be a large salvage property,” but for himself it would not be worth a ■great deal, but if auctioned off it might be worth a great deal more. Walton then told him what he had to say about it when he talked it over; and told him the way to qualify that was to make an estimate of damages not to defeat the company and to state that this was an estimate and that he would not demand this amount, but what he demanded was a fair appraisal; that upon this he wrote -out such a statement and the defendant wrote out one, and the defendant preferred his own. Then the question was put to the witness : “And you understand this to be a suggestion for you to take to the company as a qualification of any application or claims ?” If no claim was presented by the proofs of loss what need was there of qualifications ? The witness answered : “ Yes, ■sir, for I told him they would not pay the entire loss,” and he said 1 Ho,’ and I told him to qhalify it so as to make the companies understand that his position was such that he could not make an estimate of his loss on goods that were a total loss, and that he should make a claim upon the goods that were damaged by fire, which goods would be of no value to him as merchandise, but ■would amount to more possibly if put up at auction ’’—language quite inconsistent with the idea that it was not intended that the proofs of loss should present a claim to the insurance companies.

Reference is made to the testimony of Harris, Halsey and Sterns, representatives of the insurance companies who called upon the defendant in reference to the loss. But their testimony does not substantiate any such proposition as that Spiegel did not intend his proofs of loss to be a claim. The proofs of loss had been sent on the 5th of January, and these gentlemen called on the defendant on or about the 8th of January, when defendant declined to show his books, saying that he had made no claim whatsoever by his books or for any goods that were burnt up entirely, or for any damage of that kind ; clearly showing that at this time at least the defendant understood that he had made a claim against the insurers. But this point is entirely set at rest by a consideration of the proofs of loss themselves. In these proofs of loss is a claim in the following words: “And the insured claims of the Insurance-Company of North America, by reason of said loss, damage and policy of insurance the sum of $7,000.” Attached to this declaration were schedules claiming to show a loss of over $70,000.

It is sought to avoid the effect of this presentation of proofs of loss by the following statement attached to the proofs of loss, which, it would appear, was the contribution of the appellant himself: “Morris Spiegel, firm of A. Blum, Jr., Sons, city of New York, being duly sworn, says that the annexed schedules state the value and damage of the merchandise damaged by fire in the building 101 and 103 Broad street, on the 16th of December, 1891. In estimating the value of the merchandise the value -of salvage in various instances is not considered, as many of the goods damaged and saved have for us no commercial value, as their original condition is changed and their proper value should be ascertained by appraisement.” This addendum, which, although printed in the shape of an oath, does not appear ever to have been sworn to, it is claimed made the presentation of the proofs of loss simply a proposition for appraisement.

The court, in its charge, seems to have presented with great clearness and fairness this question to the jury, charging at the request of the defendant that if they believed that the defendant in presenting the proofs of loss did not intend thereby to call for the payment of any specific sum of money but only asked for an ascertainment of the loss by appraisers to be thereafter appointed or otherwise, then he must be acquitted; thus clearly presenting the precise question to the jury as to whether Spiegel intended these proofs of loss to be a claim against the insurance company or not. It is true that he qualified this request by adding the words “unless the jury find it to be a part of a fraudulent scheme,” this qualification clearly referring to what had already been stated in the charge in regard to the intention with which this appraisement clause was added to the proofs of loss. r

There seems to be no doubt upon the whole record but that the appellant, in presenting these proofs of loss, presented them under the provisions of the policy requiring 'their submission. And that he was making a claim thereon is evidenced by the proofs of loss themselves as distinctly as language' can state it. Merely because he says in an addition to the claim that he is uncertain as to the amount of salvage upon some of the articles, does not change the character of the paper. It was a claim under oath stating his damages to be over $70,000, and his claim against this insurance company to be $7,000, whereas, from the evidence, the jury had a right to find that the damage did not exceed $2,000, and his claim against this insurance company was not over $400. It would appear that there was no foundation for the request which was made and refused, and consequently no error in the ruling.

But it is urged that the court committed an error in refusing, after having completed his charge, to present additional requests to the jury. It appeared that prior to the commencement of the charge, written requests were handed up by the counsel for the defendant as to the subjects upon which the defendant requested the court to charge the jury. During the progress of the charge these requests were ruled upon—either charged to the jury as requested, or qualified, or definitely refused: After all this had been done and the jury were about to retire, the counsel for the defendant said: “ In connection with your remarks on the.evidence, I request as to the testimony of McKenna.” The court interrupted the counsel, declining to present any more requests, to which ruling the counsel for defendant seemingly assented, taking no exception. This condition of the record does not show any ground for reversal, nor that the defendant has been injured by the ruling of the court.

The next question presented is as to the use of the books of the defendant upon this trial, which it is claimed were taken from him by means of search warrant proceedings. We do not find upon an examination of the record that any but one of the books taken by the search warrant proceedings was produced irorn the custody of the People, and that seems to have been an inventory which was introduced in evidence. In the determination of this question it is not necessary to pass upon the interesting point raised by the learned counsel for the defendant, because no exception was taken to the admission of the evidence, and it is not necessary to decide how far the books, papers and implements of a person charged with crime can be used against him.

There is no constitutional question involved, as seems to be claimed, such as existed in the case of Cancemi, 18 N. Y., 128. In that case there was an error in the constitution of the tribunal before which the prisoner was convicted. Such an error is very different from one which is committed in the course of a trial, to which attention has not been balled. The prisoner has no constitutional right to be convicted by evidence that, shall be competent in every particular, although he has a constitutional right that the tribunal before which the evidence is introduced shall be constructed according to law.

In the case at bar, even if the contention of defendant’s counsel is well founded (which we do not pretend to decide), evidence was simply admitted which might have been objected to by his counsel and was not. This clearly cannot form any ground for the reversal of a judgment.

In the consideration of the exceptions to which attention has been called, it has not been necessary to state with particularity all the evidence which has been introduced upon the trial, and, as was said in the commencement of this opinion, it is impossible so to do. But, upon an examination of such evidence, it does not appear that it is the duty of this court, for errors alleged which were not excepted to, and to which attention was not called, to reverse this conviction upon the ground that injustice has been done. There was evidence before the jury justifying the verdict rendered by them, and with their conclusion we see no reason to_ interfere.

It follows, therefore, that the judgment appealed from should be affirmed.

O’Brien and Follett, JJ., concur.


source: Caselaw Access Project

author: Barnard, P. J.

license: Public Domain

text:
    Elizabeth DeLancey, Resp’t, v. John Piepgrass, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Judgment—Ejectment—Enforcement.
    A court of general jurisdiction can, by an order, enjoin a defendant from interfering with the execution of regular process for the delivery of land under a judgment.
    Appeal from an order of special term of July 22, 1893, and from an order denying a motion to vacate the preceding order.

      George A. Black, for app’lt; Walter D. Edwards, for resp’t DeLancey; John Hunter, Jr., for resp’t Hunter.
   Barnard, P. J.

Upon the appeal from the order of July 22, 1893, we come to the conclusion that a court of general jurisdiction could, by an order, enjoin a defendant from interference with the execution of regular process for the delivery of the possession of land under judgment. That such an order would be upheld under the general provisions of a court to prevent injustice. There could never be a final settlement of a dispute if after possession was delivered under an execution, the dispossessed party could re-enter by force. A person who interferes with process is punishable by proceedings for contempt if bis acts defeat or impair the rights of another. King v. Barnes, 113 N. Y., 476; 23 St. Rep., 263.

The order should be affirmed, with costs and disbursements.


author: Dykman, J.

text:
    Frank A. Hall, Resp’t, v. The Sterling Iron & Railway Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 1, 1893.)

    Grant—Easement.
    Where the grant is sufficient water to propel certain machinery, the grantee may use the water for any purpose required, but in no greater quantity than is granted.

      Appeal from a judgment in favor of plaintiff.

      William B. Anderson and. Me Grane Coxe, for app’lt; E. A. Brewster, for resp’t.
   Dykman, J.

This is an action in equity brought to restrain the defendants from placing any obstruction in or near the outlet of a certain pond called Mount Bashan Pond in Orange county, or the stream of water leading therefrom, and from doing any act whatever which shall diminish or interfere with the free flow of the water from the pond through its outlet, and from interfering with or molesting the plaintiff in removing the obstructions in the flumes at the outlet of the pond.

The foundation of the plaintiff’s claim is a deed from Peter Townsend and wife to Henry McFarlan, dated June 25, 1811, which conveyed all the right, title or privilege of using or drawing off the water from a certain pond called Mount Bashan Pond, situate in the town of Monroe, in the county of Orange near the nail manufactory of the said Henry McFarlan and others, called the Monroe Worles, for the purpose of carrying on the said works, in such quantity as would be sufficient for carrying on and working the furnace situate between said nail manufactory and the said pond, called Southfield Furnace, occupied and owned by the said Peter Townsend and others, and for which purpose said water is now used, and no further or greater quantity.

Provided always that the right so granted as aforesaid to the said Henry McFarlan, his heirs and assigns, of drawing off said-water as aforesaid, shall cease at all times whenever the said furnace, called the Southfield furnace, is in blast or making iron.

At the date of that deed Henry McFarlan and Joseph McFarlan owned and occupied about fifty-two acres of-land, which included the premises now owned by the plaintiff and also the seat of the old nail factory or Monroe Works.

The right to draw off the water of Mount Bashan pond was purchased with the joint funds of Henry and Joseph McFarlan, but the deed was taken in the name of Henry.

The plaintiff is now the owner of the land upon which the mill stands, and also the right to the water of Mount Bashan pond as conveyed to Henry McFarlan by deed from Peter Townsend of June, 1811.

The factory known as the Monroe Works was destroyed by fire many years ago and never rebuilt, but the water privilege in question has been used since that time to propel machinery upon the site where the plaintiff's factory for manufacturing wooden ware is located. The plaintiff acquired the title in April, 1886, and his deed includes the land and the water right.

The case was tried before a judge without a jury, who rendered a judgment in favor of the plaintiff for the relief demanded in the complaint, from which defendant has appealed to this court.

The trial judge found the following facts: That ever since April 1, 1886, the plaintiff has been seized in fee and possessed of the land and water power described in the complaint, which is the same as that described in the deed in the language which we have quoted, and that there was a natural stream of water leading from Mount Bashan lake to the Ramapo river, passing through the plaintiff’s land, and which furnishes a water power propelling the machinery of a factory owned and operated by the plaintiff upon his said lands.

On June 25, 1811, the lands, now owned by the plaintiff, were owned and possessed by one Henry McFarlan and Joseph Blackwell, who were partners in business, and who with their joint funds purchased the water right mentioned in the deed, from which we have taken the extract as already mentioned, the deed for the same being taken in the name of said Henry McFarlan alone. That land formed a part of a larger tract then owned and possessed by said McFarlan and Blackwell, upon which, below the place where plaintiff’s factory stands, on the same property and upon the same stream, there was a nail factory, sometimes called Monroe Works, which was destroyed by fire more than fifty years ago, and never rebuilt.

That on June 25, 1811, one Peter Townsend owned Mount Bashan Lake and the lands between the plaintiff’s premises and that lake, and also owned the Southfield furnace, and on that day he executed and delivered to said Henry McFarlan the deed already mentioned.

The plaintiff’s title to the lands now owned by him is derived through sundry mesne, conveyances from the said McFarlan and Blackwell after said deed to McFarlan, and the title to said water power granted by said deed has, by said conveyances and as appurtenance to the land, become and is now vested in the plaintiff.

At the place- where the plaintiff’s factory now is, there existed, down to about the year 1865, an old grist mill run by the same water power. At or about that date that grist mill was converted into a basket factory, which afterward gave place to a shoddy mill, and then to the plaintiff’s present factory, all of which were operated by the water power of said stream.

In September, 1891, the defendant, by closing the gate in a dam upon said stream above plaintiff’s property, and by forbidding and preventing the plaintiff from opening the outlet of the lake, deprived the plaintiff of said water power to a considerable and material extent, so that the plaintiff, from September 25, 1891, to November 16, 1892, could only run his machinery about one-quarter of the time, and the plaintiff sustained damage thereby.

The Southfield furnace has not been in blast or operation since the year 1887. As conclusion of law, the trial jury found that the plaintiff is the owner of the right to use the natural flow of said stream for the purpose of propelling machinery upon his said premises; that, in addition thereto, the plaintiff is also entitled, when the Southfield furnace is not in blast, to draw off from Mount Bashan Lake into said stream such quantity of water, from time to time, as would be sufficient for the carrying on of the works of the Southfield furnace if in blast and operated only by water power; the water power so drawn off by said lake to be able to propel machinery on plaintiff’s premises.

The plaintiff is entitled to an injunction restraining the defendant from interfering with the plaintiff’s right above mentioned. Plaintiff is entitled to judgment for such injunction and establishing his rights aforesaid, and for six cents damages and costs of the action.

A brief description of the topography of the premises in question and of the pond, is as follows: Mount Bashan pond is a lake about one square mile in extent, fed by springs and surface waters, situated in the town of Monroe, about four milos from the village of Southfield, in the town of Tuxedo.

At the northeasterly end of the lake is a dam through which flows the Mount Bashan creek, which is the only outlet of the pond. That stream flows in a general southerly direction to its junction with the Bamapo river at the village of Southfield. At a point on that stream, about three miles southerly from the pond, is a pond of about fifty acres in extent, known as the little dam pond; about half a mile further south on the stream, is situated the Southfield furnace; but from the diagram annexed to the case we see that the furnace was not located immediately upon the side of the stream, but was fed by water from the pond which led through a flume from the dam directly to the furnace. About a half mile south of the furnace, on the stream, are situated a mill of the plaintiff, and a dam which he uses for the purpose of storing water for his mill.

About 1,200 feet further southerly from the plaintiff’s mill and dam are the ruins of a building, which, as we gather, was the nail factory, known as the Monroe works, mentioned in the complaint. The difference between the parties is this: The defendant insists that the grant .was made for the use of the nail works only, and that the waters cannot be utilized for any other purpose. It is also claimed by the defendant that the action cannot be maintained because the new factory of the plaintiff is not upon the site of the old nail factory.

Contrawise, the plaintiff claims that he is not restricted to the use of the water for a nail factory, but is entitled to use the same quantity of water for any purpose upon any part of his premises. The dispute must be settled by the terms of the grant and the law' applicable thereto.

The substance of the grant is this: The right to use the water from Mount Bashan pond for the purpose of carrying on the Monroe works in such quantity as would be sufficient for carrying on and working the Southfield furnace located between the factory of the plaintiff and the pond, and no further or greater quantity.

Like all rights resting in grant, the extent of the privilege secured by this conveyance is to be measured and circumscribed alone by the terms of the instrument construed by the light of the legal principles applicable thereto, and the facts surrounding the parties at the time of the grant.

In this state, if the grant be of sufficient water to propel certain machinery, the grantor may use the water for any purpose required, no greater quantity than is granted, but it is otherwise where the use is restricted to a certain purpose. The question, therefore, must be referred to the intention of the parties to be deduced from the language of the instrument viewed in connection with the surrounding circumstances indicative of their object and purpose. In this case, there in nothing in the terms of the grant indicative of a design to restrict the grantee in the mode of using the quantity of water to which he was entitled.

Going back to the original grant of 1811, Peter Townsend, the grantor, was then the owner of the pond, the land between it and the plaintiff’s factory and the Southfield furnace, and it is easily inferred that he intended to reserve all the water power of the pond for his furnace, because he expréssly provided in his grant that the right to draw off the water granted to Henry McFarlan should cease at all times whenever the furnace was in blast, or making iron. By that proviso, the grant became dormant and inoperative whenever the furnace was making iron, and conversely it was in full operation at all times as an unrestricted grant.

Why should we indulge in the assumption that the grantor intended to restrict the use of the water to any particular purpose? Such restriction could in no way be beneficial to the grantor. He retained full control of the water for the use of his furnace whenever it was in operation. When the furnace was still, the quantity of water required to operate the machinery must run to the plaintiff’s mill to be utilized there, and the purpose for which it was used was a matter of indifference to him.

In this state, the courts have favored the construction of the terms of a grant of a sufficient quantity of water to propel a certain kind of machinery as used to indicate the quantity o'f water intended to be granted. This rule is based upon public policy, and the fact that it is more beneficial to the grantee without being more onerous to the grantor. Here the grant was of the right of using or drawing off. the water from the pond for the purpose of carrying on the works of the grantee in such quantity as would be sufficient to carry on and work the furnace, and no further or greater quantity. Within all the decisions of this state the works of the parties are intended as the measure of quantity, and not as the only purpose to which the use of the water could be applied, and it may he applied to any kind of machinery.

In the case of Cromwell v. Selden, 3 N. Y., 253, the grant was of “ water sufficient to keep a saw mill in operation at all times when there is more than is wanted to drive a grist mill with a free run of stone and one set of carding machines and a fulling mill, and other machinery for dressing cloth,” and it was held that the grantor in the deed, and those holding under him, were not restricted in the use of the water to the particular object mentioned' in the deed, but might use the quantity reserved for any other purpose.

In the case of Olmsted v. Loomis, 9 N. Y., 423, it was held that a reservation -in a grant of water privilege of so much water “As is necessary for the use of a forge and two blacksmith’s bellows,” does not limit the use of the water reserved to the sole object . specified, and such reference to a certain object will be regarded as a measure of the quantity and not as a restriction of the use of the water.

In Wakely v. Davidson, 26 N. Y., 387, the language of the grant was this: “Also the privilege of water sufficient, to carry a trip hammer in said blacksmith shop, when the same is not wanted by the parties of the first part, their heirs or assigns, for carding machines and fulling mill, said water to carry said trip hammer to be taken out to the best advantage,” and it was held by the court of appeals that the language was not a limitation of the purpose to which the water was to be applied, but of the quantity to be taken, and that the quantity of water equal to that used at the time of the grant and reservation for carding and fulling may be used by thbse claiming uuder the grant and reservation for any other manufacturing purpose.

In Comstock v. Johnson, 46 N. Y., 615, “ the defendants’ ancestors conveyed to the plaintiff’s grantor certain real estate, on which stood a carding machine and clothing works and shops, and also granted the privilege of drawing from their dam a sufficient quantity of water for the use of said works,” and the court of appeals held that the words used in the grant under which the plaintiff held were to be taken as a measure of quantity, and did not limit the use of the water to the particular machinery specified.

In the case of Mudge v. Salisbury, 110 N. Y., 413; 18 St. Rep., 601, plaintiff was the owner of certain premises upon which at the time he acquired title there was a grist mill, and the premises were conveyed to him, “ together with the grist mill privilege, being the first on the stream, for two runs of stone, with the necessary apparatus for the same.”

In an action to restrain the alleged interference with the water power, it was held that the grant was not limited to power for the grist mill as it stood at the time of the conveyance; that the privilege was made appurtenant to the land conveyed, and could be used either for the mill then standing or for any other erected on the land, or for any other purpose; that the reference to the machinery was not intended to limit the place where, or the purpose for which, the water could be used, but to measure and limit the quantity.

In the cases of Groat v. Moak, 94 N. Y., 115; Hartwell v. The Insurance Company, 50 Hun, 498 ; 20 St. Rep., 276; Fiske v. Wilber, 7 Barb., 395; Terrey v. Smith, 47 Hun, 334; 14 St. Rep., 551; Olmsted v. Loomis, 6 Barb., 152, and Borst v. Empie, 5 N. Y., 33, the decisions were all to the same effebt.

While admitting substantially that the courts in this state and in the eastern states, where the question has been many times considered with learning and ability, have held it to be for the interest of the public that the use of water power should be permitted to develop with the growth and changing interests of manufacture, the defendant yet insists that the general rule of construction based upon the doctrine of public policy is not applicable to this case.

The most that can be claimed from the authorities quoted by the appellant is, that when the intention of the parties to restrict the use is to be gathered from the instrument or from the sur rounding facts and circumstances, such intention must prevail.

That is simply stating in another way the rule which we have already recognized, but our conclusion is that neither the language of the grant in question nor the circumstances surrounding the parties at the time of its execution restricts the use of the water. Clearly a grant of water power may be so made as to restrict the use of the water to a particular purpose.

Our determination renders unnecessary an examination or decision of the question whether the rights of the plaintiff are appurtenant or in gross, for, if they are in gross, then he owns one-half. and maintains his action to protect his interests.

Moreover, the defendant has not raised the' question of nonjoinder of parties.

The j udgment should be affirmed, with costs.


author: Pryor, J.

text:
    In the Matter of the Assignment of Thomas M. Barr & Company.

      (New York Common Pleas, General Term,

      Filed January, 1894.)

    Assignment for creditors—Costs.
    Upon the trial of a disputed claim under the act as to the assignment for creditors, costs and a reasonable counsel fee may be awarded to the prevailing party.

      Myers & Anahle, for claimant; Arnold, Oreen & Patterson, for assignee.
   Pryor, J.

Upon a claim against an assignee for the benefit of creditors for damages from a breach of contract by the assignors, the controversy was referred to Stephen P. Nash, Esq., pursuant to the provisions of the statute; and application is now made for confirmation of his report.

Whether the decision of the referee be open to revision at special term (10 Daly, 75) is not mooted by counsel, and I shall act upon their acquiescence.

The conclusion of the learned referee against the validity of the claim is satisfactorily supported by the able argument accompanying his report It is fortunate for the interests of justice, and greatly in alleviation of the labor of the court, that the question in dispute was submitted for determination by a gentleman so qualified by sound judgment and professional learning to decide it.

The report is confirmed.

For services in the case, counsel for assignee solicit a compensation beyond taxable costs, and whether it be competent to the court to concede their demand, is the real question in controversy before me.

In opposition to the allowance, counsel for the claimant cite cases arising under the provisions of the Code of Procedure. But the problem here is to be solved by recourse to the assignment act, and that, in terms, authorizes the court “in its discretion to award reasonable counsel fees and costs.” Laws of 1878, chap. 318, § 26 ; 10 Edmunds Statutes at Large, 627. Matter of Fairchild, 10 Daly, 74, and Matter of Risley, 10 id., 44, are explicit adjudications of the point in favor of the assignee.

Considering the intricacy of the question involved, the research expended upon it, and the time occupied in the trial, I conclude that $450 would not be an excessive recompense to counsel.


author: Lewis, J.

text:
    Charles B. Armstrong, as Receiver of the Buffalo Railway Supply Company, Pl’ff, v. James Danahy, Def't.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1894.)

    1. Corporations—Subscriptions.
    A secret agreement of the corporation with certain subscribers to stock, whereby they are to be released from payment or to have some other advantage not common to all the subscribers, is no defense for a subscriber who was not promised the same advantages.
    S. Same—Call.
    In an action to recover a subscription, the order of the court that the receiver should proceed to collect the outstanding assets of the company operates as a sufficient call before the commencement of the action.
    8. Same—Evidence.
    In such action, an offer of evidence by defendant does not go far enough to show that alleged alterations in the subscriptions are material, where it does not include the fact as to who was responsible for it, or that it was made without his knowledge and consent.
    4. Pleading—Negative pregnant.
    An answer, which in its denial follows the identical language of the allegation of the complaint, is condemned by the courts.
    5. Same.
    Such denial, if no motion is made to make it more definite and certain, is held to put the allegations of the complaint in issue.
    Motion by the defendant for a new trial upon exceptions ordered to be heard in the first instance at general term after a verdict directed for plaintiff at the circuit.

      J. I. Quaclcenbush, for deft; Henry IF. Brush, for pl’ff.
   Lewis, J.

This action was brought by the plaintiff, as receiver of the Buffalo Railway Supply Company, to recover of the defendant $500, his subscription to the capital stock of the company. The company was organized on the 30th day of September, 1890, as a domestic corporation under the laws of the state of New York. By an order of this court dated the 14th day of November, 1892, the corporation was dissolved and the plaintiff was duly appointed receiver, and by an order of the court dated the 18th day of November, 1892, he was directed as such receiver to enforce the collection of all the outstanding assets of the company ; and he thereupon brought this action and alleged in his complaint that the defendant subscribed for $500 of the capital stock of the company which he had failed to pay. Evidence was given tending to show that the defendant subscribed- for stock as alleged in the complaint and that many others were subscribers to the stock of the company.

The defendánt offered to show as a defense that one of the other subscribers to the stock was induced to make his subscription under an arrangement that paid-up stock to the amount of his subscription should be delivered to him without his paying therefor ; and that he (defendant) was induced to make his subscription for stock relying upon the genuineness of such subscription and others. The evidence was excluded. The evidence was too indefinite to avail the defendant; if such an agreement were in fact made it did not release the subscriber or affect his liability upon his subscription. “A secret agreement of the corpora-' tion with certain subscribers to stock whereby they are to be released from payment, or to have some other advantage not common to all the subscribers, is no defense for a subscriber who was not promised the same advantages. All such secret agreements are void and the subscribers receiving them are liable oh their subscriptions absolutely as though no special advantages had been promised." Cook on the Law of Stock and Stockholders, § 191, and authorities referred to in the marginal note; Thompson on Liability of Stockholders, § 124.

Defendant contends that no call was made upon him for his subscription before the action was commenced. The' order of the court that the receiver should proceed to collect the outstanding assets of the company is an answer to this contention.

The defendant was called as a witness and testified that the subscription book was brought to him for his signature in the spring of 1890, and then the following questions w'ere asked and rulings made:

“Q. Was it (the subscription book) any different from what it is now when you signed it?

“ Objected to by plaintiff’s counsel.

“ Objection sustained and exception taken.

“Q. Was this line, this interlineation ‘one hundred thousand dollars which is to be increased to,’ was that in there when you signed it ?

“ Objected to by plaintiff’s counsel.

“ Objection sustained and exception taken."

The defendant .claims that the court erred in excluding this evidence. It does not appear upon what ground it was excluded, whether because it was not admissible because the answer failed to raise any issue, or for the reasons that the alleged alteration was not material. It was alleged in the complaint that “ In or about the month of October, 1890, this defendant subscribed for five shares of the capital stock of the said corporation at the par value of one hundred dollars each, and agreed to pay therefor the sum of five hundred dollars in the manner and at the time or times the same might be called for by the board of directors of said company." The defendant in his answer denied that he “In or about the month of October, 1890," etc., following on in the identical language of the allegation of the complaint. This was the only manner in which the allegations in the complaint referred to were put in issue. The answer might be true and every material allegation in the complaint at the same time be true.

Pomeroy, speaking of such a pleading, in his work on remedies and remedial rights, § 623, says: “ To say the least a denial in the form of a negative pregnant is such a glaring violation of logical and legal principles that it exhibits on the part of the pleader either the ignorance which does not comprehend the nature of an issue, or the astute cunning which is able to conceal the want of a defense under the appearance of a direct answer. In either instance it should be condemned by the court.” There are authorities in our state sustaining this doctrine of Pomeroy.

But it was held in Wall v. The Buffalo Water Works Company, 18 N. Y., 119, that if the plaintiff go to trial with such an answer without availing himself of the remedy of a motion that it be made more definite and certain that it must be held to put the allegations of the complaint in issue. The doctrine of this case does not appear to have been overruled. This evidence was not properly excluded because the answer failed to make an issue. We are, however, of the opinion that the defendant’s evidence and offers of evidence did not go far enough to show that the alleged alterations in the subscription were material.

It appears on examination of the subscription paper printed in the record, that the words “ One hundred thousand dollars which is to be increased to ” were interlined. As first drawn it read: “We, the undersigned, do hereby subscribe for the number of shares for the capital stock of the Buffalo Railway Supply Company, a corporation formed under the laws of the state of Hew York, and having a capital stock of two hundred thousand dollars divided into two hundred shares at a par value of one hundred dollars,” etc. By the interlineation it was made to read: “ Having a capital stock of one hundred thousand dollars which is to be increased to two hundred thousand dollars,” etc. The company had not been organized at the time the defendant made his subscription. In the articles of association when filed, the stock was fixed at $100,000, with a statement that it was to be increased to $200,000. How the capital came to be fixed at $100,000 instead of the larger sum was- not made to appear upon the trial, and' nothing is stated in the answer in reference thereto. Who was responsible for the change or whether it was made with or without the knowledge or consent of the defendant was not made to appear. There was no allegation in the answer that the alteration was frauduently made, or that the defendant was in any manner injured thereby.

We see no reason for setting aside the verdict. Defendant’s exceptions should be overruled, and judgment directed for the plaintiff upon the verdict.

Dwight, P. J., Haight and Bradley, JJ., concur.


text:
    William H. Fancher, Pl’ff, v. The New York, Lake Erie and Western Railroad Company, Def't.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1894.)

    Master and servant.
    The servant assumes the risk of defects in appliances which are plainly visible, but not of thosg which he discovered for the first time immediately before the accident and which he was helpless to remedy.

      Motion for a new trial made by the plaintiff upon exceptions ordered to be heard in this court in the first instance.

      1Walter. S. JSubbell, for plf’t; M 0. Sprague, for def’t.
   Lewis, J.

Plaintiff was at the time of the accident, and had been for several years prior thereto, in the employ of the defendant as a locomotive fireman. A part of his duties as such was to shake the grate under the fire in the engine. While performing this duty on the 3d day of October, 1889, he sustained injuries caused, as he claimed, by the negligence of the defendant, and he brought this action to recover his damages. At the close of his evidence he was nonsuited and his exceptions were directed to be heard in the first instance at the general term.

The defendant had two kinds of engines in use at the time. One was known as the foot-board engine and the other as the stem-winder engine. Plaintiff had worked upon the former class of engines mainly. The grates in the foot-board engines were arranged to be worked in sections, and were easily moved. Plaintiff’s usual run was between Bochesterand Elmira. He was directed on the morning of the day of the accident to go over his usual route with a stem-winder engine known as No. 98, which was the one upon which the accident occurred., He did as directed. The train left Bochester for Elmira about six o’clock in the morning.

It is the contention of the plaintiff that the accident was caused by defects in the grate and the machinery of the engine for which the defendant was responsible. Three defects are complained of. The grate was composed of a number of sections, but which were so connected that when the grate was shaken it necessarily moved as one member. There was a shaker bar which, when not in use, lay down upon its side; when used, it was brought up to a perpendicular position, and was worked back and forth crosswise of the engine. There was an arm or projection on each end of the several sections composing the grate. These rested in sockets, and were arranged to be held in position solely by their own weight and that of the coal upon them, there being no cap or other appliance over the ends of the arms or rods to keep them in position when the grate was being shaken. There was an ash pan under the grate to catch and hold the ashes and cinders passing through the grate from the burning coal. These sections of the grate had upon their sides projections or fingers some six inches in length, which, when the grate was manipulated, worked up and down passing by each other.

There was evidence tending to show that after the fire had continued for a considerable time ashes and cinders were liable to accumulate in such quantities in the ash pan under the grate, that the.fingers or projections mentioned, when the grate was shaken, would occasionally strike or press upon the cinders and ashes below, and thereby lift or force the arms of the grates out of their sockets. This the evidence showed had happened quite often with this grate before the time of the accident. If the grate remained in its proper position when shaken, the lever or shaker bar, when it was worked back and forth, would remain so nearly in an upright position that the operator could easily retain his hold upon it; but when the grate was lifted out of its socket it would permit the shaker bar to pass over so far as to be nearly or quite at right angles with the body of the person operating it, so that the hands of the fireman were liable to slip off the end of the lever. The fireman’s place to stand when shaking the grate of the stem winder engine is in the gangway between the engine and the tender. There is an opening at each end of this gangway of sufficient size to permit the engineer and fireman to pass through it in getting on and off the engine. On engine 98 the place for the fireman to stand when he was engaged in shaking the grate was covered with sheet iron, which had become very smooth. There was a water tank near this standing place mentioned. It had a defective faucet, out of which water ran on the day in question, and spread over the standing place mentioned, making it slippery. The evidence tended to show that this leaky condition of the tank had existed for several weeks immediately prior to the time of the accident. Great force and power were required to work the grate upon this engine for the reason that it all moved at one time. There was evidence showing that there were grates in common use upon other locomotives which could be moved in sections, and which required much less power to shake them than it did to shake the grate of engine 98. After the train had passed some twenty-three miles below Avon on the day in question plaintiff attempted to shake the grate. He was obliged, in order to move it, to use all his strength. Standing upon the wet floor he pulled the shaker bar toward himself with such force that the grate was lifted out of its sockets, thus permitting the shaker bar-to pass over so far towards plaintiff that his hands slipped off of the lever, his feet at the same time slipped from under him, and he fell back out of the cab through one of the openings mentioned upon the ground and was injured. The train was moving at the time about thirty miles an hour. Water had been leaking from this faucet a month or more before the time of the accident, for a sufficient length of time to justify the inference of constructive notice of its condition to the defendant. The plaintiff had not discovered and did not know that it leaked until just before the time of the accident. There was evidence showing that the plaintiff had worked upon this same engine on some prior occasions, but he was not aware of the liability of the grate to be lifted out of its position, nor of this leaky faucet. On the few occasions that he had theretofore shaken such a grate he had been provided with an appliance for lengthening the shaker bar which facilitated the shaking of the grate. This was not furnished to him on the day of the accident.

It is apparent that there was a serious and radical defect in the grate and in the shaking apparatus which rendered the fireman’s hold upon the lever in the contingency mentioned insecure; standing, as he was obliged to in operating the shaker bar, opposite the openings in the cab heretofore mentioned, he was liable to be precipitated out of the cab in case his hands and feet slipped in the manner stated. This was a danger to be apprehended. The water from the leaky faucet was an important factor in causing the accident. Many of the defendant’s stem-winder engines were provided with chains crossing these openings in the cab for the purpose of preventing the employes from falling out of the engine. Engine 98 was not provided with these chains, and that is one of the causes of the plaintiff’s complaint. The absence of these chains, however, was plainly visible to the plaintiff, and he must be held, we think, to have assumed the risk attending the use of the engine without them. But not so with regard to the leaky faucet and the defective grate and shaker bar. These defects he was helpless to remedy. He discovered for the first time immediately before the accident the condition of the faucet, and made no ineffectual attempt to repair it. He knew that the grate was worked with great difficulty, but he was not aware of its liability to be lifted out of its place, thereby allowing the shaker bar to pass over so far. It was a part of his duty as fireman to shake the grate from time to time; the movement of the train depended upon his performance of that work; if he neglected it, the engine would not have sufficient draft to make the requisite steam. We are of the opinion that the evidence presented questions of fact which should have been submitted to the jury. They should have been allowed to find whether the defendant had not failed to provide the plaintiff with proper machinery and appliances with which to do the work required of him, and whether the accident was not the result of defendant’s negligence in that regard. Whether the plaintiff was guilty of contributory negligence was also a question for the jury.

Plaintiff’s motion for a new trial should prevail, and a new trial should be granted, with costs to abide the event.

Dwight, P. J., Haight and Bradley, JJ., concur.


text:
    Charles W. Brown, Resp’t, v. The New York Central & Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed January, 1894.)

    1. Injunction—Hackmen.
    Section 34 of the act of 1890, as amended in 1892, applies to such ] arsons, associations and corporations, and those only, who have, or wist to ' have, business relations with the railroad - company.
    2. Same.
    The business of a common hackman does not come within the prote ition of this statute.
    3. Contract—Public policy.
    A contract between a railroad company and a party, whereby the exclusive right to enter the company’s yard with coaches and carriages and - solicit and receive any passengers, stopping at the station, who may desire to go to points in the adjacent city, is given to the latter, is not against i public policy.
    Appeal by the defendant from an injunction order granted in the above entitled action on the 23d day of June, 1893, at a special term of the supreme court held in the city of Buffalo.

      Albert A. Harris, for-app’lt; P. F. King, for resp’t.
   Lewis, J.

Defendant is a railroad corporation engaged in the business of a common carrier. It has at the city of Niagara Falls, a passenger station, at which it receives and discharges its passengers with their baggage. It lias a yard adjoining the depot around which it has erected a fence in such a manner as to prevent access thereto except through gates, provided for that purpose. There is a platform along one side of the yard which leads from the stopping place of the cars to the passenger depot. The defendant has entered into a written agreement with the Miller & Brundage Coach Company, Limited, by the terms of which, for a valuable consideration paid by the coach company, it is given the exclusive right to have its agents upon the defendant’s trains of cars running to and from the city of Niagara Falls for the purpose of soliciting business for the coach company; the contract also gives said coach company the exclusive right to enter said yard with its coaches and carriages and solicit and receive any passengers stopping at said station who may desire to go to points in the city of Niagara Falls. Passengers after alighting from defendant’s cars pass along the platform mentioned adjacent to the yard, where they may, if they so desire, enter the Miller & Brundage carriages and coaches and be driven out through the gates on to the street.

The plaintiff is the owner of two carriages with teams of horses, and is engaged with them in the transportation of passengers about the city of Niagara Falls. He and others engaged in like business are not allowed to enter the yard; they stand with their carriages upon the street near the depot, and there solicit such passengers as have not already been secured by the Miller & Brundage company. Manifestly the situation gives to the coach company great advantages over the other carriages in securing business. The defendant, although requested so to do, has refused to allow the plaintiff to,go upon its trains to solicit patronage for his carriages, or to enter the yard mentioned for a like purpose. It does not appear that the plaintiff has offered to pay the defendant anything for the privileges which he desires; he claims that the preference thus given the Miller & Brundage company is a violation of § 34 of the Lawrs of 1890, as amended by chapter 676 of the Laws of 1892, and he commenced this action to restrain the defendant from giving to the said coach company the exclusive privileges mentioned, and he obtained at the Erie special term a temporary injunction “restraining the defendant, its employes, etc., from granting or allowing to the Miller & Brundage Coach Company at-Niagara Falls, in competition with the plaintiff herein in the business of a common carrier, a preference or exclusive right or privilege to transact its business as a common carrier upon or in the depot buildings, or upon or in its yards or grounds, and from hindering, prohibiting or excluding "the plaintiff from entering the defendant’s depot and buildings, going upon its grounds at Niagara Falls, transacting his business as a common carrier thereon, while and so long as the Miller & Brundage Coach Company shall be permitted and allowed by the defendant herein to enter its depot buildings, to go upon its grounds at Niagara Falls, to transact the business of a common carrier thereon.”

That part of the motion relating to soliciting upon defendant’s cars was not granted.

No complaint is made of any preference being given to the Miller & Brundage Company in delivering the people a't the defendant’s depot who desire to take passage upon defendant’s trains. They both enjoy equal privileges in this respect, as all passengers are required to pass through the depot and there procure their tickets before entering the yard to take the cars; they all, therefore, alight from carriages at the sidewalk in the public street.

Plaintiff bases his right to the order upon the statute referred to. The original, section as passed in 1850, provided that every railroad corporation “shall furnish sufficient accommodations for the transportation of all such passengers and property as shall within a reasonable time previous thereto be offered for transportation at the place of starting and the junction of other railroads and at usual stopping places established for receiving and discharging way passengers and freight for that train and shall take, transport and discharge such passengers and property at, from and to such places on the due payment of the freight or fare legally authorized therefor, and shall be liable to the party aggrieved in an action for damages for any neglect or refusal in the premises.” This section, was amended by chapter 49 of the Laws of 1867 by adding thereto the following: “No preference for the transaction of business shall be granted by such railroad corporation to any one of two or more companies or associations competing in the business of transporting property for themselves or for others upon the railroad.owned or operated by such corporation, either upon the cars or in the depots or buildings upon the grounds of such corporation:” and then follow provisions in reference to fair and impartial dealings with connecting railroads.

This section- was again amended by chapter 565 of the Laws of 1890, but that amendment is not material to the questions under consideration. It was again amended by chapter 676 of the Laws of 1892. So much of the section as is material to the questions under consideration was by this last amendment made to read as follows: “No preference for the transaction of the business of a common carrier upon its cars, or in its depots or buildings, or upon its grounds, shall be granted by any railroad corporation to any one of two or more persons, associations or corporations competing in the same business, or in.the business of transporting property for themselves or others.”

Plaintiff’s business probably comes within the general definition of that of a common carrier as stated in the text books and decisions. When speaking of common carriers, however, we would not understand the hackman’s business to be included in that term. " He transports passengers here and there about the streets of a village or city, having no established route over which his conveyance runs, nor any specified times for making his trips. He assumes the right to let his rig for a day or any other specified time to suit the convenience or wishes of his patrons. He gives the exclusive use of his carriage to a less number of persons than it can conveniently accommodate, he pursues his business if he finds it profitable to do so, if not he remains idle. The obligations and duties of a common carrier are very different.

“A common carrier is bound to accept and carry all such things as he publicly proposes to carry for all persons who are ready and willing to pay him his customary price, provided he has the room in his boats, cars, coaches, carts or carriages for their conveyance, and he intends to set out on his accustomed journey.” Johnson v. Midland R. R. Co., 4 Exch., 367; Addison on Law of Contracts, 6 th ed., page 468.

“ Carriers are called common or private, the latter being persons who undertake for the transportation in a particular instance only, not making it their vocation, nor holding themselves out to the public ready to act for all who desire their services." Abbott’s Law Dictionary, under head of “ Carrier.”

“A person who holds himself out to carry goods of all persons indiscriminately is a common carrier.” Allen v. Sackrider, 37 N. Y., 342; Hollister v. Nowlen, 19 Wend., 236.

If it be conceded that the business of a common hackman comes ,under the general definition of a common carrier, it does not follow that it comes within the protection of this statute.

It is apparent from a reading of the several acts referred to that the legislature had in mind a very different class of common carriers. It is a matter of common knowledge that railroad companies had come to unjustly discriminate between rival shippers over their roads and between other connecting railroads; this practice had grown to be very detrimental to the business of the country, and especially to that of rival shippers of goods. These several acts were manifestly passed with a view to remedy this evil; they said to the railroads of the state you shall not give any preference to any one of two or more persons, associations or corporations competing in the same business who may wish to ship over your road. Then again the statute was intended to apply to sucli persons, associations and corporations, and those only, who have or wish to have business relations with the railroad company. It would have been quite absurd for the legislature to have attempted to regulate the conduct of railroads towards those who neither have nor wish to have any business relations with them.

It does not appear that the plaintiff ever did,or desired to do any business with the defendant. When passengers alight from the cars at the Falls, defendant’s contract relations with them are ended. The business the passengers employed it to do has been performed, the defendant owes them no further duty, it is after the relations of the passenger and the company are ended, that the plaintiff’s opportunity to deal with them commence, his business is to take the passenger in his carriage at that time and drive him about the city for a consideration. The statute does not assume to reach such a case ; it says no preference for the business of a common carrier upon its cars shall be granted, etc. What right has the plaintiff to demand that the defendant shall appropriate to him for the purpose of carrying on his private business its yard and cars, and that without paying anything for it? If the statute gives him what he .claims, then each and every one of the fifty or more hackmen at the Falls are entitled to put their agents upon the defendant’s cars to solicit business for their carriages, so long as the Miller & Brundage Company enjoys that right, and for which right it pays a consideration to defendant.

If the plaintiff be right in his contention, it logically follows that any one wishing to engage in the business of selling papers, pamphlets, stationery, etc., has the right, if he can find an unoccupied corner in a railroad depot, to insist upon occupying it for his business, if any other person shall be occupying a place in said depot for a like business by permission of the company.

The questions here presented have been the subject of discussion in the courts of this country as well as in those of England. There is some conflict in the authorities especially in the courts of this country. The English railway and canal traffic act is, in substance, like' the statute of this state. Beadell v. The Eastern Counties Railway, 2 C. B. N. S., 509, was a complaint under the statute that the railway company refused to allow the complainant to ply for passengers at its station, it having granted the exclusive right of taking up passengers within the station to one Clark for the consideration of £600 per annum. The respondent allowed the complainant’s cabs to enter the station for the purpose of putting down passengers and then required him to leave the yard, and refused to allow the plaintiff the same privileges as were accorded to Clark. An injunction was refused.

In Barker v. Midland Railway Company, 18 C. B., 45, it was held that the English statute refers entirely to persons using or desirous of using the railway or canal. Jervis, C. P., in speaking for the court, said: “I am of the opinion that the defendants are entitled to the judgment of the court. The declaration proceeds upon the assumption that the station is the private property of the railway company subject to the rights of the public using the railway. It is not pretended that the plaintiff was using or claiming to use the railway. What right then can he have to say to the company, 11 will use your private property for my profit ? ’ There is no pretense for the action ; it has neither principle nor any color of authority to sustain it.”

It was held in Painter v. London & Brighton R. R. Co., 2 C. B. N. S., 701, that only those who use the railroad are entitled to complain.

In Hole v. Digly, 27 Weekly Reporter, 884, the Midland Railway had granted one Richardson the exclusive right to provide omnibus and other carriage accommodations for passengers to and from the railway station at Battering. The yard was the private property of the company. Defendant was the servant of another bus owner, and by his master’s orders entered with his bus and was sued for trespass. On appeal to the Queen’s Bench, Lush, J., said: “ The station yard of a railway company is as much their property as the yard of a builder is his property, or that of any other person. And they have a right, if they please, to prevent any person who does not come for the purpose of being a passenger, or who having been a passenger is going out, from coming in there,” and he held that the defendant was a trespasser.

It is stated in The Old Colony Railroad Company v. Tripp, 147 Mass., 35, that “A railroad corporation may contract witli one to furnish the means to carry incoming passengers or their baggage and merchandise from its stations, and may grant to him the exclusive right there to solicit the patronage of such passengers, and such an agreement is not within the public statutes, chapter 112, § 188, which provide that such a corporation shall give to all persons or companies reasonable and equal terms, facilities and accommodations for the use of its depot and other buildings and grounds."

In Barney v. Oyster Bay & Huntington Steamboat Company, 67 N. Y., 301, the defendant was a common carrier of passengers and their baggage. Plaintiff was engaged in the express business. He attempted to solicit on defendant’s boat the privilege of carrying the baggage of passengers from the steamboat landing. 'The exclusive privilege to do such soliciting had been granted to •another. The plaintiff refusing to desist was ejected from the boat, while he held a ticket which he had purchased on the boat, and he brought the action to recover damages for being thus ejected. The court held that while it is the general duty of a carrier of passengers to carry all persons who offer themselves, if there is room in the conveyance, upon being paid the usual fare; that he is at liberty to use his property in any way he may choose to promote his interests not inconsistent with the duty he owes the passengers; that he may manage and control his own property for his own profit and advantage to the exclusion of all other persons. Judge Andrews in his opinion says: “The sale of books, papers or refreshments are common incidents to the business' of a carrier by certain modes of conveyance, and the carrier may avail himself of the opportunity which his business gives him to supply the special wants of travelers in these and other respects, and appropriate to himself the profits of the business, and exclude third persons front entering the car or vessel to carry ■on the same business in opposition to him. In this no right of the passenger is invaded.”

“A carrier,may establish for the convenience of passengers and for his own profit on his car or vessel an agency for the delivery of baggage of passengers, and exclude all other persons from entering to solicit or receive orders from passengers in competition with the agency established by him. This is in no just sense a monopoly. It is saving to the carrier a legitimate advantage which his position and business give him.” To the same effect is Fluker v. Ga. R. R. Co., 81 Ga., 461.

The cases of Cravens v. Rogers, 101 Mo., 247; Montana Union Railroad Co. v. Langlois, 9 Mont., 419, and Kalamazoo Hack & Bus Company v. Sootsma, 84 Mich., 194, are in conflict with some of the doctrines of the authorities heretofore referred to, but we think the weight of authority sustains our construction of the .statute.

The contract between the defendant and the Miller & Brundage Company is not against public policy. It conduces very much to the comfort • and convenience of passengers visiting the Falls of Niagara, as those who have occasion to visit that place know. While upon the cars travelers are at liberty to make their arrangements for the use of carriages at the Falls, and when they alight from the train they can enter the carriages within the inclosure, and avoid the unpleasant ordeal of running the gauntlet of a score or more of proprietors of carriages who are in waiting upon the street adjoining the depot soliciting employment. The charges for the use of the Miller & Brundage carriages as regulated in the contract are just and reasonable. No complaint is made in that respect.

The plaintiff, we think, failed to make a case entitling him to the order appealed from. It should be reversed, with ten dollars costs and disbursements of the appeal, and his motion denied, with ten dollars costs.

Dwight, P. J., and Haight, J., concur.