author:
Dykman, J.
      Barnard, P. J.

text:
    Hannah Bennett, Resp’t, v. The Village of Sing Sing, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    Municipal Corporations—Negligence—Defective streets.
    Plaintiff while endeavoring to cross one of defendant’s streets on a dark night stepped off the sidewalk and down a steep declivity, fell and was injured. It appeared that the defendant in grading the street had left the sidewalk from three to six feet higher than the street, with a sloping edge from which rocks projected. It "did not appear that the authorities had determined the grade. ITeld, that the defendant was guilty of negligence in permitting the sidewalk to remain in that condition and that plaintiff was entitled to recover.
    Appeal from judgment in favor of plaintiff, entered on verdict. Action for negligence.

      John Gibney, for app’lt; Smith Lent, for resp’t.
   Dykman, J.

This action was commenced and tried in the county court, and the appeal is from a judgment entered upon a verdict in favor of the plaintiff and from an order denying a motion for a new trial on the minutes of the court.

The action is for the recovery of damages resulting from inj uries sustained by the plaintiff by a fall, and the material facts are these: North Malcolm street is a public street in the village of Sing Sing, running north and south, as we ássume. At the place of the accident were sidewalks on both sides of the street, seven or eight feet wide, with a brick pavement about five feet wide in the centre in good order and condition. The sidewalk was about three feet higher than the roadbed, and there was more or less slope on the edge, but the angle of descent was left quite indefinite by the testimony. The edge was composed of soft rock and was somewhat ragged.

The plaintiff was walking on the sidewalk on the east side of the street in the evening when it was quite dark, and she started to cross the street to the west side; when she came to the bank at the edge of the sidewalk she fell and received the injuries of which she now complains.

The cause was tried before a jury and the questions respecting the negligence of the defendant in leaving the street in the condition it was, and the contributory negligence of the plaintiff, were fairly submitted to the jury, and the finding was in favor of the plaintiff.

We think this is a case where a recovery against the defendant may be sustained. It is a corporate duty, resting upon the municipal corporations in this state under their charters, to maintain the streets and sidewalks within thei'r municipalities in a reasonably safe condition for public travel, and whether it does so in a given case becomes a question of fact for a jury. BullocK v. The Mayor, 99 N. Y, 654.

This rule has no application to powers of a discretionary or legislative character, but only to such as are purely ministerial.

As a result of this rule, such corporations are liable to individuals for inj uries resulting from their negligence in maintaining the streets and sidewalks in a safe condition for travel in the usual modes.

There is no evidence in this case tending to show that the grade of the street or sidewalk where the plaintiff received her injuries had been determined by the municipal authorities, but the testimony rather tended to show that a corporate duty to render the place safe had been neglected.

The plaintiff had the right to cross the street at the place of the accident, upon the assumption that all parts of the street were reasonably safe. Brusso v. Buffalo, 90 N. Y., 679. There was no barrier or warning.

In the case of Clemence v. Auburn, 66 N.Y., 334, a portion of the sidewalk was built upon a new grade, and where the old and the new walk were joined there was a difference of several inches, and a stone to connect them was laid at a slope of six inches in about three feet and a half, and the plaintiff slipped and fell there, and. a nonsuit was held erroneous.

In that case, as in this, the sidewalk was perfect in its way, but as it was dangerous it was deemed negligent to permit it to remain in that condition.

We think the judgment and order should be affirmed, with costs.

Barnard, P. J.

The defendant is a municipal corporation, having such charge of its streets as highway commissioners have in towns. The proof shows that the village to make an easier grade dug down the part of a highway which is traveled by vehicles, and left some six feet high the sidewalk along the same. 'The descent was nearly perpendicular, and there were dangerous projecting sharp pieces of rock upon the enclosure from the sidewalk to the street. The plaintiff on a very dark night in December, 1889, was passing along this sidewalk. The paved part was bad under foot, and she attempted to cross to the other side of the street. In doing so she was thrown from the sidewalk to the street. She was fifty-eight years of age, and heavy; and was injured severely. The defendant is liable if the jury find that the road was unsafe. In the case of Saulsbury v. Village of Ithaca, 94 N. Y., 27, the court of appeals held the village liable to a person who was cast down from a sidewalk which was built above the street and unguarded on either side by reason of a lack of railing. The plaintiff had a right to cross the street at any point. Brusso v. The City of Buffalo.

The plaintiff was not as matter of law guilty of negligence which contributed to the injury. She knew there was some descent, but was ignorant of its extent. She was very careful. The boundary between the traveled part of the road and the sidewalk was not visible. Jewhurst v. City of Syracuse, 108 N. Y., 303; 13 N. Y. State Rep., 623.

The judgment should be affirmed, with costs.

Pratt, J., concurs.


source: Caselaw Access Project

author: Pratt, J.

license: Public Domain

text:
    The People, App’lts, v. Reuben Tanner, Resp’t.

      (Supreme Court, General Term, Second Deportment,

      Filed May 11, 1891.)

    Game law—Suckers not within.
    Suckers are not within the prohibition contained in chap. 534. Laws of 1879.
    Appeal from judgment in favor of defendant.
    This action was brought by direction of the game and fish protector of the third district of the state of New York to recover two penalties of twenty-five dollars each, for violations of the fish and game law. The complaint alleges, as a first cause of action, a violation of § 23 of chap. 534, Laws of 1879, as amended by chap. 127, Laws of 1884, in taking, with a net, from the waters of Wappinger’s creek, in the county of Dutchess, sundry fish, to wit: bass and suckers. For a second cause of action the complaint alleges a violation of § 24 of chap. 534, Laws of 1879, as amended by chap. 11, Laws of 1886, by defendant’s having in his possession, upon the waters, or shores of said Wappinger’s creek, without permission of the’ commissioners of fisheries, said creek being inhabited by black bass and trout, a certain net used in unlawfully taking such fish..
    At the trial before Mr. Justice Cullen and a jury, at a circuit court held at Poughkeepsie, December 16, 1890, it was proved, rand admitted, that defendant caught suckers, with a net, in Wappinger's creek, as alleged in the .first cause of action, and no other fish were proved to have been so caught by him. There being only a question of law as to whether suckers were included in the prohibition of the statute or excepted therefrom, the court by stipulation of the parties withdrew the first cause of action from the consideration of the jury and subsequently directed a verdict for the defendant.
    The second cause of action was submitted to the jury upon the-sole question as to whether the waters of Wappinger’s creek were, or were not, inhabited by black or Oswego bass; the court charging “ if you find that they were there you will find a verdict for the plaintiff on the second cause of action. If you find that they were not, you will find a verdict for the defendant upon the second cause of action.”
    The jury found for the defendant.

      Martin Heermance, dist. att’y, for app’lts; F. L. Akerley, for resp’t.
   Pratt, J.

The ruling of the court at circuit was correct as to the first count of the indictment. It is not the province of the courts to harmonize all the special enactments of the legislature, but only to decide the questions as they arise between litigants.

It is not enough in a penal statute that the law-making power intended a certain result, but the statute must be so framed that such a result can be inferred from the words used.

It is plain from the words of the statute, § 23 of chap. 534 of Laws of 1879, that suckers are not within the prohibition therein contained, and, therefore, the defendant was not guilty of any violation of that law.

The case, upon the second count, was fairly submitted to the jury and a verdict returned for the defendant. This verdict was rendered upon conflicting testimony and cannot properly be disturbed. Cullen v. National Sheet Metal Roofing Co., 46 Hun, 562; 12 N. Y. State Rep., 508.

These views, if correct, are decisive of the case. We may add, however, in answer to the appellant’s argument, that we fail to see any such inconsistency in the statute as he contends for.

It is a well known fact that suckers are never taken with a hook and line unless by accident; therefore that they should not be included among the fish only to be so taken was reasonable and proper.

The indictment was based upon this section of the law and a conviction, if had at all, must be under it.

We also think costs were properly awarded against the county of Dutchess. The People v. Alden, 112 N. Y., 117; 20 N. Y. State Rep., 496.

Judgment affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


text:
    John C. Orr et al., Resp’ts, v. Saint Anthony’s Roman Catholic Church of Brooklyn, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed May 11, 1891.)

    Bills and notes—Bona fide holder—Estoppel.
    Plaintiffs furnished materials to a contractor which were used in building defendant’s church edifice, and upon demand of payment therefor it was agreed between them and defendant’s pastor that the accounts of the contractor should be settled and defendant’s negotiable securities given for any balance found due to the contractor. This was done and certain securities taken by plaintiffs, who gave credit therefor to the contractor and surrendered his note for that amount. Held, that plaintiffs were bona file holders of such securities; that defendant was estopped from attacking their consideration, and that an error in the accounting would be no defense against an action upon them.
    Appeal from judgment in favor of plaintiffs, entered upon the •report of a referee.
    Action upon twenty-eight negotiable instruments given by defendant to one P. E. Reed, acknowledging an indebtedness. to plaintiffs for money loaned, and endorsed by said Reed

      O. H. Sanderson, for app’lt; Alfred B. Cruikshank, for resp’ts.
   Pratt, J.

The complaint sets out twenty-eight negotiable instruments, and alleges that they were made by defendant and delivered to one Reed, who in turn transferred them to the plaintiffs.

The answer alleges that they were delivered to Reed in payment of a supposed debt, which did not in fact exist

Upon the trial it appeared that plaintiffs sold lumber to Reed, who used the same in building the church edifice of defendants.

After Reed had performed work and furnished material upon the church of the value of $40,000 and upwards, being largely indebted to plaintiffs, they applied to him for payment on account .And it was agreed between Reed, the plaintiffs, and the pastor of defendant, who had charge of its affairs, that the account between .Reed and the defendant should be audited by defendant’s accountant, and for the balance, if any, found due to Reed from the church, the negotiable securities of the defendant should be given.

In pursuance of this arrangement, Reed deposited his books with the defendant’s accountant Defendant’s books were examined, and with such aid as Reed and the pastor could give it was determined that a balance was due Reed from the church. For this balance the securities in suit were issued, and the plaintiff gave credit for them to Reed, and surrendered to him his promissory notes of equal amount theretofore held by them.

Upon these facts, we are of opinion that plaintiffs are bona fide 'holders for value; that defendant is estopped from attacldng "the sufficiency of the consideration therefor, and that an error in the accounting would be no defense against these plaintiffs in this action.

The referee remarks upon the meagreness of the proof as produced before him, and has some doubt as to whether it establishes the amount of the indebtedness due from the church to Reed. We do not think any doubt is permissible upon the subject The account was examined and the amount due determined when the matters were fresh in the minds of the parties.

Since that time there has been little, if any need to preserve the original entries of the transactions, and no reason why their memory should be perpetuated.

It may be suggested that the defense of ultra vires is not pleaded, and, therefore, cannot be raised. Nor is there any averment that Reed had any knowledge at the time of the settlement of any error in the amount then determined to be due.

Unless made with knowledge of their falsity and with intent to deceive, neither of which are alleged or proved, it is not easy to see what legal effect would follow here from a mistaken statement on his part

The proof shows that the trustees of the church were all present when the certificates were authorized, and it cannot be claimed that Mr. Lane acted in bad faith or went beyond his power in issuing them.

It follows that the judgment, must be affirmed, with costs.

Barnard, P. J., and Dykman, J., concur.


author: Dugro, J.

text:
    John Reilly et al., Ex’rs, App’lts, v. Rufus Dodge et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed April 6, 1891.)

      1. Sheriffs—Sureties on bond of deputy—Notice of withdrawal.
    A bond for the faithful performance of his duty by a deputy sheriff is in legal effect one to the sheriff individually and not officially, and notice by a surety that he declines to be longer bound, if valid for any purpose, must be made so by service on the sheriff personally. Service on the. ■under sheriff is not sufficient.
    2. Same—New bond.
    The sureties on a. deputy’s bond are discharged by the acceptance of a. new bond, but only from the time of such acceptance.
    3. Same.
    A notice by the under sheriff to the deputy that the latter should receive no new business does not operate to prevent him from using and exercising his office of deputy, and does not discharge his sureties from liability.
    Appeal from judgment entered upon the report of a referee-appointed to hear and determine the whole issues.
    Action upon an official bond of the defendant Dodge as deputy sheriff. Defendants claimed to be released from liability by reason of a notice served by defendant McDermott, and the acceptance of a new bond by the sheriff. -

      Frederick Hemming, for app’lts; Louis M. Doscher, for Dodge and Sauer, resp’ts; W. W. Westervelt, for McDermott, resp’t.
   Dugro, J.

There is no evidence that the plaintiffs’ testator, Bernard Reilly, was notified prior to the commission of the acts complained of that McDermott declined longer to be a surety. Service of the notice upon the under-sheriff was not service upon the sheriff. Section 56, art 2, tit 2, chap. 3, part 3, does not apply to a notice given by a surety. The notice of the surety is not required to be served on the sheriff as such. If valid for any purpose, it can only be made so by service upon the indemnified individually and not as an official, for in legal effect the bond was to Bernard Reilly, not to Bernard Reilly as sheriff.

The acceptance of the bond of February 5th certainly discharged the former sureties, but this discharge was only operative from the date of the acceptance of the later bond.

The condition of the bond in suit is that if the defendants keep harmless Bernard Reilly touching the execution of such orders, etc., as shall be delivered to the defendant Rufus Dodge during the time the said Dodge “ shall, or may, by virtue of the warrant aforesaid, use or exercise the * * * office of deputy sheriff,” the bond shall be void, otherwise not, etc.

The action of the under-sheriff in notifying Dodge that he should receive no new business, did not operate to prevent Dodge from using and exercising the office of deputy sheriff by virtue of the warrant, for it was, in fact, while he was exercising the office that the acts complained of were committed. The exercise of the office of deputy by Dodge was always more or less controlled by the sheriff, and always properly limited by the business assigned him.

It was stipulated that if the sureties should be determined to be generally liable upon the bond, the amount of the recovery should be the sum of $985.02, with interest from June 6, 1885'; the liability of the defendant Dodge to follow the stipulation as to amount.

The sureties were liable generally upon the bond, and the plaintiffs were entitled to judgment accordingly.

Judgment reversed, order of reference vacated, and a new trial ordered, with costs to abide the event.

Sedgwick, Ch. J., and Truax, J., concur.


author: Per Curiam.

text:
    David Sears et al., Resp’ts, v. The Metropolitan Elevated R. Co. et al, App’lts.

      (New York Superior Court, General Term,

      Filed April 6, 1891.)

    Title—Partition.
    A will directed a certain share of testator’s real estate to be set off to a trustee for the life of plaintiffs’ mother, remainder in fee to plaintiffs. In an action of partition, to which all persons interested were parties, the premises in question were so set off. Held, that the parties who received the fee of other lands in such action could not claim an interest in these lands, and that plaintiffs’ mother having died, the estate of the trustee ceased and plaintiffs’ title became absolute.
    Appeal by the defendants from a judgment of the special term, enjoining the operation of the defendants’ elevated railroad in front of the premises No. 27 Park place and Nos. 24 and 26 Murray street, unless the defendants pay to the plaintiffs $25,000, with interest from November 14, 1890, the date of said judgment, for a conveyance of their easements in said streets taken by defendants for the use of said railroad; and also awarding to the plaintiffs the sum of $400 for damages to the rental value of said premises from March 27, 1888, to June 26, 1888, and $3,000 for damages to the rental value thereof from June 26, 1888, to May 15, 1890, $906.87 costs, disbursements and allowances.

      Edward C. James, for app’lts; G. Willett Van Nest, for resp’ts.
   Per Curiam.

It is claimed by the learned counsel for the appellants that the plaintiffs did not show title to the land, appurtenant easements to which have been taken as the complaint charges. The supposed defects in the title, as claimed, arise from the noncompliance with certain of the provisions of the will of one Hoyt, from whom the title comes.

If the land is a part of a share described in the will which was to be set off to the trustee for the mother of the present plaintiffs for her life, then under the will the plaintiffs took the remainder in fee at her death. This setting off was accomplished by the partition suit, to which all persons who could question plaintiffs’ title to the land were parties. These parties having received in lieu of undivided interests the whole of the fee of the other parcel of land, cannot claim that they have an undivided interest in the land conveyed by the referee to Hoyt as trustee for plaintiffs’ mother. The mother having died, the legal estate of the trustee then ceased.

The defendants have not a right to a jury trial in this case, as the action is for equitable relief. When a plaintiff brings an action for both legal and equitable relief, in respect of the same cause of action, the case presented is not one of right triable by jury under the constitution.” Cogswell v. N.Y., N. H. & H. R R. Co., 105 N. Y., 319; 7 N. Y. State Rep., 203.

Judgment affirmed, with costs.

Sedgwick, Ch. J., Tbuax and Dugro, JJ., concur.


text:
    Euphemia S. Coffin, App’lt, v. Elizabeth Jane Atkins, Impl’d, Resp’t.

      (New York Superior Court, General Term,

      Filed April 6, 1891.)

    Covenant—To heat building.
    A covenant in a deed that the grantee will supply steam for heating and the hot water for adjoining buildings, “as now connected,” refers to the time of delivery of the deed, and a subsequent grantee of the premises cannot recover contribution for the' expense of furnishing the steam as provided in said covenant without showing that the supply to the premises in question was as they were connected at the time of delivery of the deed.
    Appeal from a judgment in favor of defendant Atkins, dismissing the complaint
    Action for an accounting between plaintiff and defendant Atkins and others in relation to the expenses incurred by plaintiff in supplying steam and hot water to defendants' houses. The common source of title conveyed to plaintiff’s grantor a house in the cellar of which was a boiler and steam heating apparatus connected with the adjoining houses. The deed contained a covenant on the part of the grantee to furnish “ steam for heating and the hot water for the adjoining buildings on the east of the premises hereby conveyed as now connected," so long as the expense thereof should be paid by dividing the same among the buildings using the steam and hot water.

      Edmund Coffin, Jr., for app’lt; Daly, Hoyt & Mason, for resp’t.
   Dugro, J.

This is an appeal from a judgment The covenant in the deed of July, 1884, reads that the plaintiff will “supply the steam for heating and the hot water for the adjoining buildings on the east of the premises hereby conveyed as now connected.”

The word “ now ” refers to the time of the delivery of the deed.

To establish his case it became necessary for the plaintiff to show, among other things, that the supply of the steam and hot water to the premises in question was as they were connected at the time of the delivery of the deed. This she failed to do. The complaint was, therefore, properly dismissed. The judgment should be affirmed.

Sedgwick, Ch. J., concurs in result.


text:
    Albert Emmitt, App’lt, v. The Mayor, etc., of New York, Resp’t.

      (New York Superior Court, General Term,

      Filed April 16, 1891.)

    1. MUNICIPAL CORPORATIONS — AQUEDUCT COMMISSIONERS HAVE NO POWER TO SUSPEND INSPECTOR WITHOUT PAY.
    While the aqueduct commissioners have power to discharge an inspector of masonry, they have no power to suspend him without pay, and salary accruing during such period of suspension may be recovered.
    (Following Mullen v. Mayor, 34 N. Y. State Rep., 913.) .
    2. Same—Estoppel.
    Where, however, such inspector, during a period of suspension, signs an agreement providing that in case of suspension his pay shall cease, he is thereby estopped from claiming pay during subsequent suspensions.
    Exceptions ordered heard' at general term, in first instance, after direction by the court that the jury find a verdict in favor of the defendant
    The action was brought to recover $1,360, with interest thereon, for salary alleged to be due the plaintiff as inspector of masonry on the new aqueduct during several periods of suspension.
    It was claimed by appellant that the commissioners had no power to suspend him without pay. It appeared that on January 23, 1889, during a period of suspension, he signed an agreement reciting his appointment and providing in consideration thereof to faithfully discharge his duties, and that in case of discharge or suspension his pay should cease from the time of such suspension.

      Hatch & Warren, for app’lt; William H. Clark, corporation counsel, for resp’t.
   Per Curiam.

Since the trial in this action the main question of law raised by this appeal has been passed upon favorably to appellant’s contention by the general term of the supreme court, in Mullen v. The Mayor, etc., 34 N. Y. State Rep., 913. We have determined to accept this disposition of the question as correct for the purposes of this appeal. The agreement of January 23, 1889, raises a question which should be determined in favor of the respondent. The plaintiff, by his action in executing this agreement, which was not prohibited by law and did not relate to an illegal transaction, is estopped from claiming the invalidity of the agreement as to any period of suspension following its execution.

It follows that the defendant is liable only for compensation for such periods of suspension as preceded January 23, 1889.

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

Sedgwick, Oh. J., Truax and Dugro, JJ., concur.


author: Ingraham, J.

text:
    John Brooks Leavitt, Resp’t, v. Louis S. Chase, App’lt.

      (New York Superior Court, General Term.,

      Filed April 16, 1891.)

    Attorneys—Compensation.
    _ Plaintiff entered into an agreement in October, 1882, to perform professional services for defendant as attorney. He subsequently wrote defendant a letter abrogating the agreement, but performed the services. In an action to recover their value, defendant and plaintiff's brother testified that the letter was withdrawn and the agreement reinstated. The brother was not an attorney nor the partner of plaintiff, and no authority to dct for him was shown. Held, that the question was one for the referee; that the agreements made between defendant and plaintiff’s brother were not binding on plaintiff unless communicated to and ratified by him, and that a finding in plaintiff's favor would not be disturbed.
    Appeal from judgment in favor of plaintiff, entered on the report of a referee.

      Robert G. Ingersoll, for app’lt; Austen G. Fox, for resp’t.
   Ingraham, J.

This action was brought to recover for legal services rendered by plaintiff to defendant. The substantial questions litigated before the referee are questions of fact, and the determination of ’this appeal has required an extended examination of the extremely voluminous briefs and a large portion of the testimony before the referee.

There was a sharp conflict of evidence as to the agreement under which the plaintiff performed the services. Whether it was xinder the agreement made October 1, 1882, or whether that agreement had been abrogated and the services performed without a special contract as to the compensation to be paid, depended upon whether the referee believed the testimony of the plaintiff, or that of the defendant corroborated by the evidence of the plaintiff’s brother who had been connected with plaintiff in business, but who now appears as attorney for the defendant.

It was conceded that a letter had been written by plaintiff to defendant on December, 1883, which, would abrogate the agreement of October, 1882. Defendant, however, claims that that letter had been withdrawn and the agreement of October, 1882, reinstated. That question was for the referee.

The other questions were passed on by the referee in favor of plaintiff and his findings were, I think, sustained by the evidence. It is, however, clear that the evidence did not so greatly preponderate in favor of the defendant as to justify the court in reversing the judgment on the ground that the conclusions arrived at by the referee were against the weight of evidence.

I have arrived at this result after extended examination of the case, but no good purpose would be subserved by a reference to the testimony which has led me to that conclusion.

The questions of law presented are not important and do not require extended consideration. After the agreement of October, 1882, was made it cannot be said that the relations that existed between the plaintiff and his brother were such as authorized plaintiff’s brother to bind him by special contracts made for him.

The referee has found that the plaintiff and his brother were not partners and that finding is amply sustained by the evidence. Plaintiff’s brother was not an attorney and the contract was made with the plaintiff alone.

Under the circumstances as they appear, even admitting that the referee believed the plaintiff’s brother and the defendant as to the agreements that they made between themselves as to the compensation to be paid to plaintiff for services he was to render, I think the referee was justified in finding that those agreements were not binding upon the plaintiff unless communicated to and ratified by him, and such knowledge of the agreements or ratification was expressly and strenuously denied by the plaintiff.

The question having been left to the determination of the referee, and he having found the disputed questions of fact in favor of the respondents upon evidence which is sufficient to sustain the finding, and no principle of law having been violated that requires a reversal of the judgment, I think the judgment should be affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concur.


author: Sedgwick, Ch. J. Truax, J.

text:
    John Morrison, Resp’t, v. The Press Publishing Co., App’lt.

      (New York Superior Court, General Term,

      Filed April 16, 1891.)

    1. Libel—Malice—Exemplary Damages.
    The falsity of a libel is sufficient proof of malice to uphold exemplary damages, although the defendant was not actuated by spiteful or revengeful feelings, and plaintiff’s right to recover them is in the discretion of the jury.
    2. Same—Evidence.
    _ A witness who testified to plaintiff’s good reputation before the publication of the article in question, was allowed to testify on cross-examination to having heard stories derogatory to plaintiff at that time, but was not allowed to speak as to stories heard subsequent thereto. Held, no error.
    3. Same.
    Other articles in the same paper, written by the same person and containing references to plaintiff, showing that he knew him and had easy means of ascertaining the truth, are admissible on the question of malice. Per. Sedgwick, Oh. J.

      4. Same—Mitigation.
    Evidence that other persons had published libelous statements concerning the plaintiff is not admissible in mitigation of damages. Per Tkuax, J.
    5. Same—Damages.
    Where the libel consisted of statements that plaintiff was charged with certain offenses, it is proper to refuse a request to charge that the jury could only award such damages as would result from a publication that he was charged with the offenses, and not such damages as would flow from the publication of a statement that he was guilty of the charges. Per Tbttax, J.
    Appeal from judgment entered on the verdict of a jury, and from an order denying a motion for a new trial
    The action was brought to recover damages for an alleged libel published by defendant concerning plaintiff in the daily paper called “TheWorld.”

      Lowery, Stone & Auerbach, for app’lt; Joshua M. Fiero, for resp’t.
   Sedgwick, Ch. J.

Several of the exceptions taken upon the trial were too general in form to be valid or to admit of review. The others will be examined.

The action was for damages from libel. The court charged that there was malice in the libel, and to this the defendants excepted. The libel contained such matter as this, that “a woman, pointing her finger at Morrison, said with much feeling, that man could not violate my sister’s honor, had her blacklisted in the factory and she a widow with five children.” As this was false and published without justification, it was malicious. And the malice, which is inferred from such a publication, is malice in fact or actual malice.

There was an exception in the following words: “ I except to what the court said with regard to the exemplary damages in this case, especially in view of the fact that the court held that there was no actual malice proven.” The court thereupon said “ as I define actual malice.” The part of the charge that referred to actual malice as defined by the court was: “But as a definition of what the counsel intend to convey by actual malice is that the defendant was not actuated by any spiteful or revengeful feelings; that he had at the time no particular feeling of ill will towards this plaintiff when making the publication. There does not seem to be evidence in the case which would warrant that. The proof of malice in the case, and proof upon which malice rests, is the proof of the fact of the libelous publication itself. That is, of course, evidence of malice, and as it is admitted to have been made, malice is proven.”

The falsity of the libel is sufficient proof of malice to uphold exemplary damages, and plaintiff’s right to recover them is in the discretion of the.jury. Bergmann v. Jones, 94 N. Y., 51. In that case a charge was upheld that in actions of libel “ the plaintiff gives evidence of malice whenever he proves the falseness of the libel; that it is then a question for the jury to say whether it is of such a character as to call for punitive or exemplary damages, and that -the question is not taken from them because the defendant gives evidence which tends to show that there was, in fact, no actual malice.”

In Samuels v. Evening Mail Association, 75 N. Y., 604, there was an approval of the law as given in the dissenting opinion in the same case. 9 Hun, 288. That case avers that upon proof of the'falsity of the libel the plaintiff is entitled to exemplary damages in the discretion óf the jury. But when the defendant gives evidence leading to prove the absence of actual malice, then the jury should pass upon the question as one of fact whether such malice existed in the publication.

Of course, the meaning of this is, that if the defendant gives evidence tending to disprove entirely the malice which is presumed from the falsity of the libel to have existed, there should be no exemplary damages. This result does not follow if the evidence tends to disprove only a part of the malice which is presumed. There will be left that malice which the jury may think calls for exemplary damages.

In the present case the court held that there was no actual malice in the sense of spite, or ill-will or revenge. This, however, was not inconsistent with recklessness and indifference to the rights of the plaintiff, an intentional disregard of the consequences of the libel Voltz v. Blackmar, 64 N. Y., 444; Millard v. Brown, 35 id., 297. The doing of any act without just cause or a wrongful act purposely done is malicions.

As the presumed existence of malice of this kind remained, the defendant had not an exemption from liability to exemplary damages. Accordingly, the court, after charging that there could be no damage on account of defendant’s ill-will or spite to plaintiff, was correct in saying you may give him in addition as exemplary damages such an amount as you deem proper and warranted by the evidence. The exception should be overruled.

The composer of the libelous article was a witness for defendant. He was allowed to testify that two other articles that had appeared in the same newspaper that contained the libel were composed by him. And these articles were admitted in evidence.

There was no error in this. They contained nothing that was likely in itself to bias the jury against the defendant or to distract their attention from the issue. And they did contain references to the plaintiff which showed that the witness knew him and had easy means of ascertaining from him the truth of the matters contained in the libel.

As recklessness and indifferencé to rights were elements of malice, the court was correct in admitting the articles as relevant- to the question of malice.

The testimony of witnesses Levy and Mallane as to their knowledge of plaintiff’s reputation was such that it was at least a question of fact for the jury whether they knew that reputation, and their testimony as to it was admissible.

A witness of plaintiff testified as to the good general reputation of the plaintiff before 19th February, 1888. On cross-examination he was allowed to testify as to his hearing at the time referred to stories derogatory to the plaintiff. He was not allowed to speak as to stories subsequent to that time. It was not a part of a cross-examination and the defendant had no right as a part of a. defense to prove the matters inquired into.

The judgment and order are affirmed, with costs.

Truax, J.

The defendant attempted to show, in mitigation of damages, that some years prior to the publication of the alleged libel by the defendant, an affidavit charging the plaintiff with having circulated stories concerning the chastity of women employed in a certain carpet factory was published in another newspaper in the city of New York.

In one instance the attempt was made by asking the plaintiff on cross-examination if a certain affidavit, the affidavit above referred to, did not charge him with having circulated stories concerning' the chastity of girls in a carpet factory. This question was ruled out and the defendant excepted.

The exception was not well taken. The evidence sought to-be elicited was not the best evidence of the contents of the affidavit, nor was this the proper way of proving that plaintiff had circulated such stories, if that fact were material to the issue. Nor did this evidence tend to rebut the presumption of malice on the part of the defendant, for there is nothing to show that defendant was aware of the affidavit at the time it published the libel concerning the plaintiff. Hatfield v. Lasher, 81 N. Y., 246.

Nor was it proper to*show that other persons had, before the publication of the libel by the defendant, published and circulated libelous statements concerning the plaintiff. In the first place, the publication alluded to was made some four years prior to that of the defendant, and the fact that such a publication had been made did not tend to show that the damage suffered by plaintiff by the publication of the libel by the defendant was not necessarily attributable to the act of the defendant. And it is not the law in this state that the defendant, in an action for libel, can show that the plaintiff’s reputation was so bad that defendant’s libel did not injure it. Hatfield v. Lasher, 81 N. Y, 250, and cases there cited ; Prescott v. Tousey, 50 Supr. Ct., 12.

On the trial the court asked a witness what plaintiff’s reputation in the community in which he, the plaintiff, resided, was, and the witness answered that among laboring men with whom he, the witness, associated, plaintiff’s reputation was bad. This answer was stricken out as not responsive and defendant excepted. The answer was not responsive and it was not error for the court to strike it out. But even if it was error, the error was cured, for immediately afterwards, in answer to another question, the witness skid that plaintiff’s general reputation in the community was bad.

The defendant .called witnesses to show that plaintiff’s general reputation at the time the libel was published by the defendant was bad. The plaintiff, in rebuttal, called witnesses to show that at the time of such publication his general reputation was good. On cross-examination, one of these witnesses said that he had heard among laboring people and members of laboring organizations (the plaintiff was prominent in labor organizations) stories derogatory to plaintiff’s character. The witness was then asked what these stories were, generally. This question was ruled out, and the defendant excepted. JSTo error was committed.

It may be that defendant would have had the right to show what plaintiff’s reputation was, but it is doubtful if it had the right to show what'his character was. It is also to be noticed that the question applied to stories affecting the character of the plaintiff, told, as well after the publication of the alleged libel as before, while the witness on the direct examination had limited his testimony to the plaintiff’s reputation at the time of the publication of the alleged libel. There were two other exceptions to rulings of a like kind, but for the reason last stated they were not well taken.

The trial judge charged that there was malice in the publication, and to this the defendant excepted, but the judge also charged that the evidence would not warrant the jury in finding that there was actual malice toward the plaintiff; that in publishing this article, which was libelous, the law infers malice; that is, malice in law existed. He then defined actual malice, as distinct from malice in law, to be such malice as attached to an act when committed by a revengeful or spiteful disposition. This was in effect charging that while there was no actual malice shown, still the jury could infer malice from the mere fact of the publication of such a libel. It was not error so to charge. In this case malice was proved when the publication was proved. Fry v. Bennett, 5 Sandf., 54.

This court declared in the case above cited that when a publication was libelous upon its face the law implied that it was published with a malicious intent, and that malice in such cases is a conclusion of law which the plaintiff is not required to prove and which the defendant is not allowed to deny.

Hnder the authority of this case it would have been error for the trial judge to submit the question of the defendant’s malice to the jury, and the fact that the trial judge charged that there was no proof of actual malice is immaterial. What the trial judge meant was, that there was no proof of malice outside of the malice that the law inferred from the mere fact of the publication of the libel, and for this malice in law the jury might, under the Samuels case, award exemplary damages.

The defendant gave no evidence that tended to show that there was in fact no actual malice; but even if it had given such evidence the trial judge did not err in charging, not that the jury must, but that it might give exemplary damages.

The case was one within the rule laid down by Judge Davis in Samuels v. The Evening Mail, 9 Hun, 288, entitling the plaintiff to exemplary damages. The publication was grossly libelous, was negligently and recklessly made, and made without any regard to the rights of the plaintiff.

The last alleged error to which our attention has been called by counsel for defendant relates to a request of the defendant to charge that in fixing the amount of damages to be awarded the plaintiff, the jury must bear in mind that the defendant did not publish any statement that the plaintiff was guilty of the charges which were said to have been made against him, but merely that he was charged with certain offenses, and they can award only such damages as would result from the publication that Morrison had been charged with the offenses, and not with such damages as might flow from the publication of a statement that Morrison was guilty of the charges. It was not error for the judge to refuse to charge as requested.

The defendant cannot escape responsibility for libeling plaintiff by showing that the libeling was done on the authority of some other individual. Dole v. Lyon, 10 Johns., 447.

The judgment and order appealed from are affirmed, with costs.


text:
    Jacob H. Deitch, Resp’t, v. Frederick Schanning et al., App’Its.

      (New York Superior Court, General Term,

      Filed April 16, 1891.)

    1. Trial—Exception to charge.
    In an action for wrongful discharge, the court charged that if the oath uttered by plaintiff was the child of irritation created by the circumstances and was not a matter of disrespect to the employer, and excusable under the circumstances, it was not a cause of discharge; but if it was deliberate disrespect to the employer, and so intended, and was not called out by anything that had happened, it was for the jury to say whether or not it was a cause for discharge. Held, that an exception “ to that part of the charge” where it was said “if the oath was the child of irritation, etc., and not called out by anything liable to irritate him, then it was a proper cause of discharge, otherwise not," was not sufficient to present the objection that the court allowed the jury to say that the oath, even though a deliberate disrespect, was n< t cause for discharge.
    2. Master and servant—Compensation—Evidence.
    Plaintiff was to be paid a certain salary and commissions on sales made by him directly or indirectly. He procured an order for inspection of defendants’ books, or a sworn statement of such sales. An exhibit was presented by plaintiff, claimed to have been given in compliance with the order, but which was shown to have been given on request of his counsel on his furnishing a list of names. Held, that such exhibit was only evidence of defendants’ sales, and not of sales made by plaintiff.
    Appeal from judgment in favor of plaintiff entered upon verdict and from order denying motion for a new trial on the minutes.
    Action for wrongful discharge.

      Joseph N. Goldbacher, for app’lts; Adolph L. Sanger, for resp’t.
   Dugro, J.

This is an appeal from a judgment entered upon a verdict and an order denying a motion for a new trial on the minutes.

The plaintiff was a general salesman in defendants’ employ on June 1, 1888, when he was discharged for alleged misbehavior. His contract of employment in terms fixed the period of his service for one year, to commence November 15, 1888, and his compensation at $1,500 per annum and a commission of five per cent on all sales over $30,000, made by him direct or indirect, except .•sales in Boston.

The action is for damages for the discharge. An exception appears in the case in the following words: “ I except to that part of the charge * * * where your honor made use of the expression : ‘ If the oath was the child of irritation, etc., and not called out by anything liable to irritate him, then it was a proper cause of discharge, otherwise not’ ” The court had previously charged as follows : “ How, remembering all the other relations of the firm, if you find that this oath was the child of irritation, created by the circumstances, and was not a matter of disrespect to Mr. Lublin, and was excusable under all the circumstances, then _you will find that it was not a cause of discharge. On the other hand, if you think it was deliberate disrespect to Mr. Lublin and made use of for that purpose, for the purpose .showing disrespect, and was not called out of the plaintiff by anything that had happened, by their former relations, which would be likely to irritate a man, but that it was deliberate on his part, I leave it to you to say whether or not that is a cause of discharge.” If, by this exception, the defendant desired to call the court’s attention to its action in allowing the jury to say that the oath, even though a deliberate disrespect, etc., was not cause for the discharge, he failed to accomplish his purpose, for the exception did not present to the court the precise point intended, nor was, it likely to do so. For this reason the exception is not valuable. McGinley v. United States Life Insurance Co., 77 N. Y., 495.

Upon the taking of the exception the court said: “ Ho; I meant to leave it to the jury whether it was, under all the circumstances, etc.” The court evidently did not understand the exception as addressed to the erroneous part of the charge, that is, to the part which I have specially referred to.

It will be observed that the oath alluded to is that which was testified to as of June 1st Except as to the damages, the charge was upon the .whole, full and fair, and I have been unable to find any errors of substance. It seems that on March 5, 1890, while the action was pending, an order was obtained by the plaintiff which read: “ Ordered that the plaintiff have an inspection and discovery of the defendants’ sales book for the period covered by the contract mentioned in the complaint, November 7,1888, to November 7, 1889, which the defendants may give * * * by delivering to plaintiff a sworn statement of sales made by plaintiff'direct or indirect during said period, or by allowing plaintiff to examine their ¡said sales book, etc.” Upon the trial the plaintiff testified that plaintiff’s exhibit 4 (a paper containing a list of defendants’ sales to certain persons) was submitted in compliance with this order; but, .at the request of defendants’ counsel, the counsel for the plaintiff rstated at the trial the facts with respect to the order and the delivery of the exhibit From this statement it seems that the exhibit was not delivered in compliance with the order, but in compliance with the request of plaintiff’s counsel. The latter says:

“We supplied them (defendants) with the list of names and we said: We want you to put opposite the name of each party that we give you the total sales that were made by you that appear on your books during the year beginning November 15, 1888, and ending November 15, 1889,’ and thereupon they supplied us with this statement * * *. The defendants claimed that they would insist that although they gave us this statement of sale, they were not to be considered as conceding that they were sales made by the plaintiff direct or indirect upon which he was entitled to commission, and we said : ‘ You can make that reservation in court’ ”

From this statement it is apparent that the privilege in the order accorded to the defendants, of delivering a sworn statement of sales made by the plaintiff, direct or indirect, was not used. The order of March does not seem to have been disregarded. The exhibit can, therefore, be considered as evidence only of the defendants’ sales, as therein indicated. There is no evidence in the case which would warrant a finding that the plaintiff made all of the sales which appear upon the exhibit The evidence rather tends to show the contrary. It seems impossible to say, from the evidence, that the plaintiff’s sales exceeded $30,000.

"The verdict, in so far as it exceeded the balance unpaid of the $1,500, less the plaintiff’s earnings prior to the time of the expiration of the contract, and interest on the difference to the time of trial, was excessive and contrary to the evidence.

The judgment is reversed and a new trial ordered, with costs of appeal to appellants. If the respondent will consent to a reduction of the judgment to such a sum as is indicated to be proper, the judgment will be affirmed as thus modified, without costs.

Truax, J., concurs.


author: Freedman, J. Sedgwick, Ch. J. Ingraham, J. (dissenting.)

text:
    Vincent A. Witcher, Resp’t, v. The Tribune Association, App’lt.

      (New York Superior Court, General Term,

      Filed April 16, 1891.)

    Depositions—Examination before trial.
    Whenever it is made to appear that the party sought to be examined is a non-resident, the court may require proof of the ability of the applicant to make service of the order within the state, and in the absence of such proof the court may decline to make the order. Where it affirmatively appears that such service cannot be made within the state, the order should be refused.
    (Ingraham, J., dissents.)
    Appeal from order of the special term, denying defendant’s motion for an order that the plaintiff appear and submit to an examination as a party before trial and that in the event of the plaintiff’s failure to appear for examination as directed, the trial of this action be stayed.

      Sackett & Bennett, for app’lt; Maltby, Bayne & Marshall, for resp’t
   Freedman, J.

The application of the defendant for an order directing the plaintiff to appear and submit to an examination before trial as a witness on behalf of the defendant, was made on notice to plaintiff’s attorneys and on the hearing affidavits were read on both sides. The court was, therefore, in the position in which it would have been if an order for the examination had been previously granted ex parte and the plaintiff had moved, on affidavits and on notice to the defendant, for the vacation of the order.

In such a case it has been, ever since the decision of Levy v. Loeb, 44 Y. Y. Supr. Ct., 291; affirmed 75 N. Y., 609, the practice of this court to require that the papers in support of the application shall fully establish, by facts and circumstances, the necessity and materiality of the examination sought and the good faith of the application, and then to exercise a sound discretion as to whether upon all the facts disclosed the examination shall or shall not be had. This practice is also sanctioned by the decision of the court of appeals in Jenkins v. Putnam, 106 N. Y., 272 ; 8 N. Y. State Rep., 710. Of still greater importance is the question of jurisdiction whenever the power of the court is challenged in an important particular.

In the case at bar it was shown in the moving affidavit, as well as by the affidavit read in opposition, that the plaintiff is not a resident of this state, but resides in or near Riceville in the state of Virginia. It was also shown by the opposing affidavit that the plaintiff has not been within this state since the commencement of the action and that he does not intend to come here before trial, if then.

Section 873 of the Code of Civil Procedure expressly provides that service of the order for the examination of a party must be made within this state, and § 886 prescribes that if the person to be examined is a resident of the state he shall not be required to attend in any county other than that in which he resides, or where he has an office for the regular transaction of business in person, and that, if he is not a resident, he shall not be required to attend in any other county than that wherein he is served with a subpoena, unless, for special reasons stated in the affidavit, the order otherwise directs.

The court possesses no inherent power to order the examination of a party before trial at the instance of an adverse party. The jurisdiction is purely statutory, and depends solely upon the provisions of the Code.

Whenever, therefore, it is made to appear that the party sought to be examined is a non-resident, the court may require proof of the ability of the applicant to make service of the order within the state, and in the absence of such proof the court may decline to make what appears to be a useless order.

In the present case no such proof was adduced, and moreover it affirmatively appeared that service of the order cannot be made within the state. Irrespective therefore of the question of the good or the bad faith of the application, the order was properly refused for the reason stated. If it had been made ex parte, and the plaintiff had moved for its vacation upon affidavit showing that he is a non-resident, and that service cannot be made upon him in this state, the court would have been bound to vacate it under the decision of the general term of this court in Dunham v. The Mercantile Mut. Ins. Co., 44 N. Y. Superior Ct., 387; S. C., 6 Abb. N. C., 70. There is no power in the court to require the plaintiff, as a resident of another state, to come to New York from such state for the sole purpose of being examined.

The case of Dudley v. The Press Publishing Co., 53 Hun, 347; 25 N. Y. State Rep., 32, does not call for a different conclusion. It does not appear that Dudley was shown to be a non-resident. 'The claim was that he had left the state of Hew York and thus prevented service of the order. Moreover, he had not moved to vacate the order for his examination, which had been granted ex parte. It was for these reasons that the order denying the motion -of the plaintiff in that case to vacate or limit an order extending the defendant’s time to answer was affirmed, and from the opinion delivered on that occasion it seems that the court was not called upon and did not consider the effect of §§ 873 and 886 of the Code of Civil Procedure.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Sedgwick, Ch. J.

I concur. The appellant’s counsel disclaimed any intention to maintain a right to an order of the ordinary kind for an examination before trial of a party.

Ingraham, J. (dissenting.)

The examination of a party before trial, at the instance of the opposite party is regulated by the Code. Section 873 provides for granting such an order. It is there provided that the judge to whom the affidavit required by § 872 of the Code is presented must grant an order for the examination, and that the order must require the person who is to be examined to appear before the judge for the purpose of taking the examination at a time and place therein specified.

There is no provision as to notice of the application, and the usual practice is to apply ex parte, but there is no reason why a party should not give notice that he intends to apply to a judge of the court at a time and place named for an order requiring the opposite party to appear and be examined, and the fact that notice was given does not deprive the party making the application of his right to the order. If the affidavit on which the application was made complied with § 872 of the Code, the judge, to whom the application was made was bound to grant an order requiring the plaintiff to appear before him and submit to an examination at a time and place therein named.

I think the affidavit on which the order was applied for was sufficient.

The provisions of § 872 were complied with, and it is clear that the examination of the plaintiff was material and necessary, and that the defendant intended to read the deposition upon the trial of the action.

The judge to whom the application was made should, therefore, have granted an order for the examination of, the plaintiff. The balance of the relief asked for was properly denied.

It did not appear but that the plaintiff would appear and submit to an examination if he was ordered to do so by a judge of the court It is true he was a non-resident, but until an order was duly granted and evidence presented to the court that he could not be served and had refused to appear, no order of the court, should be made staying the proceedings until he should so appear.

It is not intended to intimate an opinion as to whether or not the court should grant an order staying proceedings until the plaintiff should appear and submit to an examination already ordered, but until an order has been granted and the plaintiff has failed to appear, there was no foundation for an application to the special term of the court for such an order. There can be no doubt as to the power of the court to stay proceedings in an action in case of the disobedience of its order, whether such a stay would be granted or not, in the sound discretion of the court.

I think the order should be reversed so far as it refused to grant an order for the examination of the plaintiff, and affirmed so far as it denied the defendant’s motion for a stay of proceedings, without costs of this appeal to either party.

Order affirmed, with ten dollars costs and disbursements.


author: Mayham. J.

text:
    Jacob Parmenter, Resp’t, v. John J. Fitzpatrick, Impl’d, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    1. Conversion—Sale—Chattel mortgage.
    Where the defendant claimed that a written instrument under which the plaintiff asserted absolute title to certain chattels was a mortgage given only for security, and that it was void for non-filing as against defendant who represented judgment creditors of the mortgagor, Meld, that it was a proper question for the jury whether the instrument was a chattel mortgage or an absolute bill of sale', and that their verdict, upon conflicting evidence, would not be disturbed.
    2. Sale—Fraudulent transfer.
    A sale of chattels not accompanied by immediate delivery is presumptively fraudulent as against the creditors of the vendor, and the burden is upon the person claiming under the vendor to show that the sale was bona file and made without intent to defraud. The question of intent is one of fact, and the verdict of a jury thereon will not be reversed unless it shows prejudice or passion.
    Appeal from a judgment entered on the verdict of a jury, in favor of the plaintiff, and from an order denying a motion for a new trial upon the minutes of the court.
    The action was brought against the defendant, Fitzpatrick, sheriff of Clinton county, and some judgment creditors of A. 0. Smith & Co., to recover for the alleged wrongful taking and conversion of a stock of merchandise.
    The summons was served only the defendant
    The complaint alleged that, at a time therein stated, the plaintiff was the owner and in possession of a stock of goods, wares and merchandise which he purchased of A. C. Smith & Co., on the 2d of April, 1888, subject to a lien for $76.27 in favor of C. P. Moses, and that on or before the 15th of April, 1888, the defendant took possession of the whole of such stock and property, and converted the same to his own use.
    That the value of the property taken was $2,500 over and above the lien, and that before the commencement of this action he tendered to the defendant Fitzpatrick the amount of the lien and demanded possession of the goods, which demand was refused.
    The answer of the defendant denies that he took possession of "the plaintiff’s property and the tender of the amount of Moses’ lien.
    The answer sets up the recovery of a judgment in the supreme court by Moses against A. C. Smith & Co. on the 20th of March, 1888, the docketing of the same in Clinton county on the 21st day of March, 1888, on which an execution was issued to this defendant on the 21st day of March, 1888, as sheriff of Clinton county.
    Also the recovery by different persons or firms of four other judgments in the supreme court against A. C. Smith, one on the 14th of April, 1888, for $518.79, which was on that day docketed in Clinton county, on which execution on that day was duly issued to this defendant as sheriff; one on the 13th day of April, 1888, for $3,309.63, which was also duly docketed in Clinton county, and on the same day two other judgments were rendered in the supreme court against A. C. Smith & Co., one for $1,491.88 and one for $3,716.63, all of which were on, that day docketed in Clinton county, on each of which executions were on the 15th day of April, 1888, duly issued to this defendant as sheriff, and that upon all the executions in his hands he on the day of the issuance of the same levied upon the property mentioned in the complaint in this action, and after having duly advertised the same sold said property under and by virtue of said executions, and that the same did not on such sale sell for enough to satisfy the first three executions.
    On the trial of this case upon the issues so made the plaintiff recovered, and from that recovery the defendant appeals.

      Beckwith, Barnard & Wheeler (George E. Beckwith, of counsel), for app’lt; Riley & Conway (J. F. Conway, of counsel), for resp’t.
   Mayham. J.

The plaintiff claims title to property alleged to have been converted by the defendant under an instrument in writing dated April 2, 1888, which he insists is an absolute bill of sale, conveying to him the title to all the property in controversy, and that the consideration expressed therein was fully paid by his assumption and payment of $13,000 of notes made by A. C. Smith & Co., his vendor, for the debts and liabilities of that firm, and on which the plaintiff was an accommodation endorser.

The defendant and appellant insists that the writing under which plaintiff claims title was, in effect, but a chattel mortgage and intended only as security, and that as against the defendant who represented the judgment creditors of the mortgagor the same not having been filed as required by law was void.

The instrument is in form a bill of sale, and is as follows :

“ Plattsburgh, April 2, 1888.
“Jacob Parmenter.
“ Bought of A. C. Smith & Co. the entire stock of goods, wares and merchandise of every name and nature (here follows a particular designation of property and the place in which it was).
“ This sale is intended and does include all the property belonging to us in said building or store, Xo. 71 Margaret street, and also all the organs, pianos, musical instruments or sewing machines which we have placed in the Dominion of Canada, Vermont, or Essex, FL Y., for the sum of $13,000. For and in consideration of said purchase said Parmenter has paid us the said sum $13,000 and we hereby acknowledge the payment of the •same.
“ We further hereby agree to give the said Parmenter peaceable possession of said store and property whenever he shall demand the same.
“A. 0. Smith & Co.”

Upon the face of this paper it purports to be an absolute “ bill of sale ” reciting the payment of consideration and such sale, if sale it was, was before the liens of any of the executions in the hands of the defendant could attach, except the execution on the judgment of March 2, 1888, for $76.27.

But the appellant claims and insists that the testimony of the plaintiff shows that the property was taken by him only as security for his endorsement. The alleged consideration was the taking up and retiring by the plaintiff of the vendor’s notes to the amount of $13,000, and the plaintiff insists that he paid that consideration and actually took up and retired that amount of those notes, and in his testimony given on the trial he testified :

“ I have paid and retired $13,000 of these notes of A. C. Smith & Co. pursuant to that agreement”

There was other evidence tending to show that this was an absolute “ bill of sale ” and there is also evidence offered by the defendant tending to show that it was a security in the nature of a mortgage.

But on the trial it was submitted to the jury by the trial judge, under proper instructions, for them to determine, under all the evidence, whether the writing was intended by the parties as an absolute sale, or as a security in the nature of a mortgage, and if they found it was but a mortgage or as a security for plaintiff’s endorsement of these notes then the plaintiff could not recover.

That was a correct interpretation and exposition of the law, Dutcher v. Swartwood, 15 Hun, 31; Stimson et al v. Wrigley, 86 N. Y., 339, and it was properly left to the jury, because a bill of sale or a deed absolute, upon its face may be shown to be only a mortgage or security for the performance of some act by the vendor or grantor. As a finding by the jury that this was intended as a mortgage would have resulted in a verdict for the defendant, we must assume on this appeal that as their verdict was for the plaintiff they must have found that the instrument was what it purports to he, an absolute bill of sale; as was said by the court in Wolf v. Fire Ins. Co., 43 Barb., 405, “ If either of these propositions are to be regarded as established by the verdict, it is the latter, according to the intendment of the law, that the verdict settles in favor of the prevailing party every question of fact litigated on the trial.

“We are not to intend that the jury found either of the issues in favor of the unsuccessful party for the purpose of overturning the verdict. On the contrary, we are required to hold that every issue was found against the unsuccessful party if necessary to sustain the verdict.”

We think the rule above laid down is correct when there is sufficient evidence to uphold the finding of the jury and that from their verdict we must conclude that they found the transaction between A. G. Smith & Co. and the plaintiff a sale; a conclusion which, when found by the jury, is supported by sufficient evidence to-uphold it.

The jury having found it a sale, the next inquiry arises as to a valid sale, under the circumstances, against the defendant, who is proceeding under valid judgments and executions against the property of the plaintiff’s vendor.

It is insisted by the appellant that if it be held that this was an absolute sale, as between the plaintiff and his vendor, still it is presumptively fraudulent and void as to this defendant and the judgment creditors whom he represents.

As to the judgment and execution of March 12,1888, on which the defendant had a levy before the execution of the bill of sale, the plaintiff concedes the lien if the execution is valid and seeks-to avoid its effect by a tender, which will be discussed in a subsequent part of this opinion.

But as to all the other judgments and executions under which the defendant seeks to justify his interference with this property, the plaintiff insists that he has the title and that his vendor and the creditors of his vendor have no right to it

The bill of sale was executed and delivered on the 2d of April,, and by its terms the plaintiff had a right to the possession whenever he shall demand the same, and he took possession on the 5th of April.

The statute declares that Every sale made by a vendor of goods and chattels in his possession or under his control * * * unless the same be accompanied by an immediate delivery and followed by an actual and continued change of possession of the thing sold, * * * shall be presumed to be fraudulent and void as against creditors of the vendor * * * and shall be conclusive evidence of fraud unless it shall be made to appear on the part of the person claiming under such sale * * * that the same was made in good faith and without any intent to defraud such creditors.” 4 R. S., 8 ed., p. 2591, § 5. Section 6 of the same title defines the term “ creditors.” as used in § 5, to be-any who shall be creditors of the vendor at any time while the chattels shall remain in his possession or under his control.

Section 4 of title 3 of the same chapter provides that the fraudulent intent under this provision of the statute shall be a question of fact and not of law. 0

Under these provisions of law the burden was cast upon the plaintiff in this case to satisfy the jury that this was a valid and bona fide sale of goods, and that the same was made by the parties to it in good faith and without any intent to defraud the creditors of the vendor.

It is true that by the bill of sale absolute in its terms the title as between the vendor and vendee passed at its delivery, and there is evidence in the case that the vendee was to have the proceeds of the sales at the stores after that time, but that does not answer the requirements of the statute of frauds, which, as we have seen requires an actual delivery at the time of the sale and that learned trial judge held that, if the jury found that it was an absolute sale, it not being followed by an immediate change of possession and presumptively fraudulent and void under the statute, it was for the jury to détermine whether the sale was made in good faith or with intent to defraud creditors.

There was no exception to this ruling and we think it a correct application of the law.

Upon this disputed question of fact there is evidence upon which the jury could probably have found either way ; and their finding would on appeal have been sustained whichever way they found.

As was said by Pinch J., in Stimson v. Wrigley, 86 N. Y., 337: “ The question of fact is not without difficulty. There was some contradiction in the testimony or at least in the inferences to which it led, and where that is the case the conclusions of the trial court upon the facts are not open to our review."

It is true that that rule is not as inflexible when applied to the review by the general term of this court as it is in the court of appeals, yet in this court, unless there is such a preponderance of evidence against the verdict as to evince prejudice or passion, the verdict of a jury upon disputed questions of fact by a jury remains a part of our judicial system, their verdict should be respected by appellate courts unless it is manifest to the appellate courts that such verdict is the result of passion, prejudice or clear misconception of the law, as laid down by the trial judge.

The jury having found in favor of the plaintiff upon the question of fraud, which in this case is a question of fact made so by statute, as we have seen and there being evidence to uphold their finding, it must be sustained on this appeal.

Uor do we think their verdict should be interfered with on the ground of excessive damages. There was evidence to uphold the same.

Before the purchase on the bill of sale the defendant had levied the execution issued on the judgment of March 2, 1888, for $76.27, on the goods in question and he had, therefore, as against the plaintiff’s vendor before the sale and the plaintiff after the sale, a valid lien on the same.

This lien the plaintiff, on the 19th of April, sought to extinguish by payment of that execution, and for that purpose, on that day, he tendered to the defendant eighty dollars in gold in payment of that judgment and satisfaction of that execution.

It is true that in some of the technical rules in respect to the making of a tender, the evidence is not quite complete, but we think enough was proved to authorize the jury to find that the plaintiff offered to pay the small execution which had been levied on the property before the execution of the bill of sale, which was . refused by the defendant, who had at that time other executions against A. C. Smith & Co., the liens of which defendant claims had attached, and the eighty dollars tendered was insufficient to satisfy all the executions in his hands at the time of the tender.

It is not claimed cthat the amount tendered was insufficient to pay the execution, but it is insisted that the same was not absolute, but conditional, and therefore ineffectual as a tender; but we think the jury were authorized by the facts disclosed to find that the plaintiff offered.to pay and satisfy the execution.

The law seems well settled that a tender by a judgment debtor to the sheriff of a sufficient sum to satisfy the execution discharges the lien of the execution upon property levied upon by virtue thereof. Tiffany v. St. John, 65 N. Y., 314.

The offer of payment or tender in the case at bar is different from the case of Noyes v. Wyckoff, 114 N. Y., 204; 23 N. Y. State Rep., 105.

In this case the tender was upon the express condition that it was “in payment and extinguishment of his lien.”

In this case the plaintiff swears that he and the defendant had a talk about this execution, and the defendant, at plaintiff’s request, gave him the figures $76.27.

In describing what occurred at the time of the alleged tender, witness says: “ The next occasion when I went to see the sheriff was when I made the tender ; that was the 14th of April.

“I took the money out; it was in gold; I said I tender you eighty dollars for that judgment, but he refused, and did not receive it.”

The jury might well understand that this was an offer of payment on account of the execution, without imposing any conditions upon the same, except such as the law would attach to the transaction.

The plaintiff having acquired the title to this property by the bill of sale on the 2d of April, and taken actual possession on the 5th, and before any -actual levy was made by the defendant on the executions issued after the 2d, his title having been acquired before actual levy on such other executions, would not be affected by them.

The title to personal property acquired before the actual levy of an execution by a purchaser in good faith, and without notice that the execution has been issued, is not affected by an execution delivered, before the purchase was made, to an officer to be executed. Code of Civ. Pro., § 1409.

We have examined the several exceptions to the ruling of the learned judge on the trial, and find no error in the same for which judgment should be reversed.

Judgment affirmed, with' costs.

Learned, P. J., and Landon, J., concur;


author: Mayham, J. Learned, P. J Landon, J.

text:
    Jeffry Paris, Resp’t, v. The Village of Green Island, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 21, 1891.)

    1. Negligence—Contributory—Intoxication.
    In an action for negligence, where it was claimed that the accident was the result of plaintiff’s intoxication, Meld, that whether the plaintiff was intoxicated, and whether, if he was, it contributed to the injury, were questions for the jury.
    2. Same—What is a safe speed in driving is for the jury.
    Whether a vehicle, at the time of an accident, was being driven at a • reasonable or safe speed, is also a question for the jury.
    Appeal from a judgment entered upon the verdict of a jury, and from an order denying the defendant’s motion for a new trial made upon the judge’s minutes, upon the exceptions taken at the trial in "behalf of the defendant that the verdict is against the evidénce and contrary to law.
    The action was prosecuted to recover damages alleged to have been sustained by the defendant from injuries suffered by him by being thrown from a wagon which plaintiff claims was upset by coming in contact with a pile of earth which plaintiff claims defendant negligently suffered to be in one of its streets.
    The claim was resisted at the trial by the defendant mainly upon the ground that the pile of earth in the gutter of the street was temporarily placed there by an adjoining owner while repairing his premises, and was not a negligent act or omission of the defendant or of such adjoining owner which the defendant was required to guard against
    Also, that the plaintiff was not free from negligence; that he and his associates at the time of the alleged injury were intoxicated and were engaged in negligently running the horse attached to the wagon in which plaintiff was riding and negligently drove or permitted such horse to run with the wagon into the gutter, out of the usual traveled part of the street, thereby causing the accident, and that it was caused or contributed to by the plaintiff’s negligence.

      Henry A. King, for app’lt; P. D. Niver, for resp’t
   Mayham, J.

The accident complained of occurred on one of the defendant’s streets, which was straight with a roadway of thirty-six feet in width and a sidewalk on either side, each twelve feet wide.

On the 14th of April, at about nine (9) o’clock in the evening, the plaintiff with three companions started from a saloon on West street, in the village of Green Island, in a wagon, at the same time that another party in another wagon started from the same saloon, all driving in the direction of Cohoes.

The undisputed evidence tends to prove that the two parties came out of the saloon at the same time and got in their wagons and started in the same direction at a rapid rate of speed, some of the witnesses saying the horses were running from the start.

A witness, who was in a house adjoining the saloon, saw the two parties get in their wagons and start. The witness testifies :

“ I saw the parties get into the wagons; both parties.
“ Q. At Gladdus’ ?
“A. Yes, sir, and one party says, Are you ready? and somebody says, Yes, we’re ready, and somebody offered to bet; one party offered bet, I do not know who it was, that they could beat the other to Cohoes, and they both started.”

The witness testifies that they both started very swiftly and he thought the team running; that the parties were talking and shouting boisterously, the horses going apparently at the best of their speed.

The wagon in which-plaintiff was seated was nearest the saloon, and on starting ran along the gutter, arid the other wagon was between it and the middle of the street, and the plaintiff testifies that in getting into the wagor. one party.said to the other, “ Are you ready?” and the answer was, “We are ready,’’ and both started at the word “Let her go;” that the horses were running, and at the distance of about sixty feet from the point of starting plaintiff’s wagon came upon the earth pile in the gutter and was capsized and plaintiff thrown out and injured.

These facts are substantially corroborated by all of the witnesses who testify upon that subject.

The evidence further discloses that the plaintiff and his companions started from Cohoes at about two o’clock in the afternoon and drove to Lansingburgh, Troy, West Troy, Green Island and other places, stopping in their passage at at least eight saloons and hotels between that time and the time of the injury, at all of which the party, or some one- or more of them, drank some kind of intoxicating drink, and there seems no doubt from the evidence that the entire party were more or less under the influence of intoxicating drink.

At the time of the accident the night was clear, the full moon and stars were shining, and there was a street lamp lighted at the corner near the place of the accident

The mound of earth over which the carriage was driven, which capsized it, was variously estimated by the witnesses from six inches to two feet high, and as variously stated as extending from the sidewalk from two to six feet towards or into the street.

There is also some conflict in the evidence as to the length of time this mound of earth had Leen suffered to remain in the street, in the position in which it was at the time of the alleged injury. '

The foregoing summary of facts as proved in the case is sufficient to present the questions which are submitted for the consideration óf this court, which are:

Mrst. Was this municipality guilty of negligence in allowing a pile of earth to remain in the street .

Second. Did the plaintiff by his proof show he was guilty of any negligence on his part which contributed to his injury of which he complains?

Third. Was any error committed on the trial in the receipt or rejection of evidence, or in the charge of the judge or his refusal to nonsuit or set aside the verdict, to the prejudice of the defendant, for which the judgment should be reversed ?

There was no proof in this case of any actual notice to the defendant or any of its officers charged with the duty of keeping the streets in a reasonably safe condition for the public travel of this obstruction.

But the testimony shows that it had been substantially in the condition in which it was at the time of the accident for several days, and we think it was properly left to the jury, from that evidence, whether it had remained there a sufficient length of time to become known and notorious, and afford a full opportunity for the defendant, through its agents, to learn of its existence so as to impute to it notice and charge of negligence in not removing the obstruction. Todd v. The City of Troy, 61 N. Y., 509 ; Hart v. The City of Brooklyn, 36 Barb., 226 ; Conrad v. Village of Ithaca, 16 N. Y., 158 ; Requa v. City of Rochester, 45 id., 129.

The next question is, did the plaintiff, by his own act or negligence, contribute to the injury, or rather, was there any evidence from which the jury could find that he was free from contributory negligence.

The learned counsel for the appellant urges these circumstances appearing in the evidence as tending affirmatively to prove contributory negligence on the part of plaintiff:

First. The apparent inebriated condition of the plaintiff and his associates.

Second. The reckless manner of driving the team at the time of the injury.

Third. The abundance of room in the street, aside from that occupied by the obstruction, and the fact that the obstruction was plainly visible from its size and the glare of light by which it was surrounded.

As to the first point, the condition of the plaintiff and his associates, it seems to have been settled upon authority that as to whether or not that constituted contributory negligence was a question for the jury. In Edward Healy v. The Mayor, etc., of the City of New York, 3 Hun, 708, it was expressly held in an action brought to recover damages for injuries sustained in consequence of defects existing in a sidewalk, it appeared that the plaintiff was intoxicated at the time of the accident, that it was for the jury and not the court to say whether or not the intoxication contributed in any degree to the injury sustained.

In that case the court, in its opinion pronounced by Brady, J., and concurred in by Daniels, J., says: “ The defense as suggested was the intoxication of the plaintiff; but that did not deprive him per se of protection. By putting himself in that unfortunate condition he was not abandoned by the law. He was only subject to its consequences, whatever they might be, and if his drunkenness in any way contributed to the injury he must bear the burden.

“ Whether it did or not was a question of fact for the jury to. determine.

“ It was for. them and not for the court to say whether he was intoxicated at the time of the accident, and whether, if he was, it contributed in any degree to the injury which he received.”

The same doctrine was held in the case of Mary E. Ditchett v. The Spuyten Duyvil & Port Morris R. R. Co., 5 Hun, 165.

There is no doubt but that the jury were authorized to take into account the condition of the plaintiff and his associates and determine whether they were drunk or sober, and whether, if drunk, their condition contributed to the injury complained of, but within the above authorities they, and not the court, must determine that question, and the same was, therefore, properly submitted to them.

Upon this question we are referred by the learned counsel for the appellant to the case of Monk v. The Town of New Utrecht, 104 N. Y., 552 ; 6 N. Y. State Rep., 484.

But we fail to see that that case in any way changed the rule-laid down in the 8 and 5 of Hun, to which we have referred.

The case last cited turned upon the question of the liability of a town to provide a guard upon steep declivities from the sidewalks of a country road.

It is true that in that case the court of appeals hold that the nonsuit was also proper On the ground of the plaintiff’s contributory negligence, which, from the circumstances of that case, was. the clear result of his intoxication.

The next point upon this branch of the case urged as contributory negligence was the rapid driving of the team at the time of the injury. The plaintiff was not, at the time of the accident, driving the team, but I think it may be assumed that as between him and the appellants he is entitled to no immunity from that fact, as the defendant owed him no duty to protect him against the consequences of the carelessness or negligence of the driver of his own selection.

The court, when asked to hold and charge that it was negligence per se to drive a horse rapidly through the street, as described in this case, said: “ I would not like to charge that as-matter of law; I think that is a question of fact for the jury.”

We think in that the learned justice was right. The law fixes no maximum rate of speed at which teams attached to vehicles shall be driven through the streets of a village. What is a reasonáble, prudent, or safe rate of speed is, therefore, a question of fact for a jury, to be governed by the circumstances of the case.

But in this case we think the jury failed to take into consideration and give due weight to the evidence which bore upon the-question of the contributory negligence of the plaintiff and his associates. The street was amply sufficient in width for two or more teams to be driven abreast at the point of the injury without-coming in contact with the alleged obstruction. It was well lighted at the point where.the accident occurred. The conduct of the party and the frequency with which they were shown to have-imbibed intoxicating drink that afternoon raised a fair presuroption that that they were more or less intoxicated, and their shouts and boisterous conduct on starting from the restaurant immediately before the accident on this Sabbath evening went far to establish a want of suitable care on their part, if it did not establish affirmatively contributory negligence. In Dubois v. The City of Kingston, where the plaintiff was running to a fire in the night time, and stumbled over a stepping stone in front of a building, where the walk was wide enough to afford ample opportunity for pedestrians to pass without collision, and where the street was well lighted, the court of appeals reversed the judgment for the plaintiff upon the verdict of a jury on the ground that the plaintiff was guilty of contributory negligence. Dubois v. City of Kingston, 102 N. Y., 219; 1 N. Y. State Rep., 350.

We think the evidence of contributory negligence in this case is quite as strong if not stronger against the plaintiff than in the case last cited and that this judgment should be reversed.

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

Learned, P. J

In my opinion the evidence of intoxication and careless driving was such that the verdict should be set aside as against the weight of evidence.

The parties had been during the afternoon and evening stopping at saloons and drinking. It is not difficult to understand their condition, nor is it possible not to understand the mode in which they started from the last saloon which they patronized. Two wagons side by side, each starting for Gohoes; “ Are you ready ? ” “ Let her go; ” the wo start together, the one in which, the plaintiff is, being near the gutter, runs over a pile of dirt and. is upset.

This was about half past nine P. M., April 14, when the sun would set about seven and the moon rose about a quarter before eight, the moon being full the next day. It was a clear night in a straight and wide street.

This seems to me to be one of those cases where the court should not permit a verdict to stand. The whole evidence shows, so plainly the intoxicated condition of the parties and their careless act in driving over the pile of dirt.

Landon, J.

While I fully agree with my brother, Mayham, that this case presents questions of fact for the jury, and that there are no errors of law requiring a reversal, still Í think the finding that the plaintiff did not by his own negligence contribute to his injury, is against the clear weight of evidence. We cannot substitute our opinion for the verdict of the jury, but the granting of a new trial will still leave the decision of the controverted question of fact to them, and I think this is a proper case in which to direct, in our discretion, that another jury shall consider the evidence and render a verdict.

Judgment reversed, new trial granted, costs to abide event.