text:
    Alfred Johnson, Pl’ff, v. The Steam Gauge & Lantern Co., Def't.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    1. Master and servant—Negligence—Fire escapes.-
    Defendant carried on the manufacture of its goods in a building seven stories high. There had been stairs to the roof which had been removed and two fire escapes, one of which was so obstructed by window blinds as to be inaccessable, and the other ended fourteen feet above an area from which the covering had been removed, and in which was a chute leading to the lower story. Plaintiff, who was at work in the fifth story on the occasion of a fire, endeavored to escape by the latter fire escape, and dropped therefrom into the chute, breaking the bones of his leg so as to require amputation. Held, that the facts justified a finding that defendant failed to provide a proper fire escape; that a safe landing place is an essential part of a fire escape.
    3. Same.
    An approval of the fire escape by the factory inspector will not exonerate the master in such a case from liability. His certificate cannot operate to convert an obviously unsafe landing into a safe one.
    3. Same—Evidence.
    The surgeon who saw plaintiff immediately after the accident was allowed to testify that from the relative position and condition of the broken bones it was his opinion that plaintiff’s foot struck upon a sloping object, and that the heel struck first, and that his body was in an upright position when he fell. Held, that such evidence was competent.

      Motion by the defendant for a new trial made upon exceptions ordered to be heard at general term in the first instance after verdict at the circuit.

      Walter S. Hubbell, for pl’ff; Louis Marshall, for def’t.
   Lewis, J.

This action was brought to recover damages sustained by the plaintiff for injuries sustained while attempting to escape from the factory of the defendant in which he was employed at the time.

The building was destroyed by fire on the evening of the 9th of November, 1888.

His injuries, he claims, were caused by the defendant’s failure to provide suitable and proper fire escapes on the building.

The defendant was the lessee and occupant of a building which was located in the city of Rochester, adjoining the Genesee river, and was engaged in manufacturing therein lanterns and steam gauges.

The building was seven stories high, and consisted of a main part which extended north and south, a wing about 100 feet long running east and west, and connected with the main part on each floor by means of arches, thus constituting a single building.

The Genesee river flowed along against the north and east foundation walls of the main building.

On the south side of the wing and on the west side of the main part was a court which ran south to Center street, and was, at its eastern end, about forty feet in width.

This court was surrounded on three sides by buildings; on the west by one extending from Center street "to the wing of the defendant’s factory; on the east side by a building extending from Center street to the main building; on the north by the wing of defendant’s building. The natural surface of the ground of this court descended from Center street towards the north, so that at the wing building the surface of the ground was about on a level with the top of its foundation wall.

Within this court, and near its north end, a building had been constructed to contain an engine and boiler.

It had independent stone walls ; its north wall was located six feet two inches south from the south wall of the wing-building. Its east and west walls were three or four feet distant from the main building and from the west building, leaving an open area between the engine building and the wing building, extending to the bottom of the lower story of the wing building.

The engine building was about fourteen feet in height. The top of it was paved and formed the floor of the court which was used for the purpose of reaching the steps leading from the court into the building.

When the factory building was constructed there was a pair of stairs leading from the upper floor of the building to an opening in the roof, for the purpose of escape in case of fire.

These stairs had been removed by the defendant previous to the fire, and at the time of the fire the only means of reaching the roof was by one of the fire escapes hereafter mentioned.

There were two fire escapes upon the building, both upon the court sides.

One was upon the west side of the main part, which it is not necessary particularly to describe, for the reason that in consequence of the presence of window blinds opening against the escape it was exceedingly difficult, if not impossible, to reach the escape from the windows of the building.

The other fire escape was upon the east wall of an elevator shaft, which extended out into the court some six feet from the southerly side of the wing part of the building.

This escape was made of iron pipes, the bent ends of which ■were inserted into the wall of the elevator shaft

It extended from the roof of the building down the wall to a point about fourteen feet above the roof of the boiler room. This escape was -directly over the area described between the boiler room and the wing building.

This area extended from the elevator shaft easterly to the main building some eighteen or twenty feet, and was, as stated, six feet two inches wide and some twenty to twenty-five feet in depth.

A person dropping from the lower rung of the escape, but for reasons hereafter stated, would naturally fall into this area or open space.

There was a door in the south wall of the wing building, just east of the elevator shaft.

When the building was constructed a platform or landing was placed in front of this door, partially covering the area. There Were three or four steps leading from the roof of the engine and boiler building up to this "platform.

The treads and platform rested upon two iron rods extending from the boiler building to the wing, and which were so constructed as to support the steps and platform.

The use of this door was abandoned a year or two before the accident in question, and the treads and the outer board of the platform were removed, leaving only the two iron rods and the remnant of the platform, which was some twenty inches to two feet in width, in position.

This change was made to make room for a chute from the court into the lower story of the wing building, and one was placed in between the iron rods mentioned near the east wall of the elevator shaft.

The chute was about three feet wide and was made of boards with risers on each side about six inches high.

Its upper end extended up about two or three feet higher than the roof of the engine house; the chute ran down into the wing of the building into a door directly under the door above described, and at an angle of about forty-five degrees.

It was used for sliding boxes and supplies from the court into a lower story of the wing building.

The upper end or mouth of the chute extended out into the court beyond the line of the rungs of the fire escape, but just how far does not appear.

It was sufficiently near to the escape so that some of the persons who attempted to descend the fire escape on the night of the fire, in dropping from the escape, landed in the chute.

A witness testified that when dropping from the fire escape he swung his body out into the court so as to avoid falling into the area, and fell into the chute.

The plaintiff, in describing his descent, says he dropped straight down from the last rung, and found himself, when he became conscious, in the chute.'

There were a large number of employes in the building at the time of the fire.

The fire spread with great rapidity, filling the building with dense smoke.

The plaintiff was at work, at the time the alarm of fire was given, upon the fifth floor.

He passed down the stairs leading from the fifth to the fourth floor, and attempted to descend the stairs from the fourth to the third floor; but was prevented from so doing by smoke and fire; he then went to the fire escape upon the elevator shaft, and proceeded to descend into the court, and when he reached the lower rung of the escape he dropped from the escape and became unconscious. When he regained his consciousness he found himself seated in the mouth of the chute, with his legs hanging over its sides ; his left leg. was broken in several places below the knee, making amputation of the leg necessary.

The statute made it the defendant’s duty to provide the plaintiff with suitable and proper fire escapes connected with each floor of the factory above the first, well fastened and secured and of sufficient strength.

The statute also required that there should be stairs or a ladder leading from the inside of the upper story of the building to thereof.

The stairs, as we have seen, had been removed, and one of the fire escapes was practically useless because of the obstacles in the way of reaching it.

The evidence, we think, tended to show and justified the jury in finding that the defendant failed to provide a proper fire escape; a safe landing place is an essential part of a fire escape; had the fire escape in question been upon the north side of the factory over the waters of the Genesee river, it would not be claimed to have been a fire escape within the meaning of the statute.

The defendant had caused the covering of the area to be so removed that persons using the fire escape were liable to receive serious injuries.

The evidence tended to show that plaintiff’s injuries were caused by the negligence of the defendant.

The plaintiff was not guilty of contributory negligence in attempting to use the fire escape.

While he had a general knowledge of the location, had seen the-chute, and knew perhaps that the steps had be@n removed, he did not know the precise situation and relative position of the fire escape, steps, chute and area, and if he did it is not surprising that in the excitement of the occasion he did not think and reason quite correctly.

Surgeons testified that they found both bones of the plaintiff’s left leg broken below the knee, and that one of the broken bones was driven up into the knee joint.

One of the surgeons was permitted to testify that, judging from the relative position and the condition of the broken bones, in his opinion the plaintiff’s foot of the broken leg struck upon a sloping-object, and that the heel of the foot struck the object first before the ball of the foot struck, and that his body was in an upright position when he fell. •

This testimony was given by one of the surgeons who saw the plaintiff immediately after his injuries and examined his condition.

We think the evidence was competent. The witness, being a surgeon, presumably had a knowledge of the anatomy of the human body, the strength and position of the bones of the leg, not common to laymen, and having had the advantage of a personal examination of the plaintiff’s leg after the injury he was properly allowed to give his opinion as an expert.

The defendant’s counsel contends that the approval of the fire escape by the factory inspector operated as a compliance by the defendant with the requirements of the statute, and as an answer to any charge of negligence.

The inspector probably never saw or had his attention called to the condition of things under the escape where plaintiff was injured.

It cannot be successfully maintained that his certificate could operate to convert an obviously unsafe landing into a safe one.

The inspector testified that he did observe that the window blinds obstructed access to the fire escape upon the main building and advised their removal, but that his advice was not heeded by the defendant.

We have examined the defendant’s exceptions and find no»reason for disturbing the verdict.

The motion for a new trial should be denied, with costs, and judgment directed for the plaintiff upon the verdict

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


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    J. De Witt Butts, Resp’t, v. The J. C. Mackay Co , App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    1. Negligence—Contractors.
    The rule that a contractor who has sublet a portion of the work to a responsible and competent party is not liable for damages caused by the negligence of the sub-contractor has no application to a case where an agent of the contractor having charge of the work directs the agent of the owner of the building to let water in the tank furnished by the subcontractor without investigating to ascertain if it would hold water.
    3. Same—Assignability of claims for damages.
    Claims of tenants of the owner for damages to their goods caused by the water leaking from the tank are assignable.

      Appeal from a judgment entered in favor of the plaintiff upon the report of a referee.
    A. N. Wilson, for app’lt; William N. Cogswell, for resp’t.
   Lewis, J.

The defendant is a domestic corporation engaged in supplying buildings with a sprinkling system for extinguishing fires, known as the J. G. Mackay Go. automatic fire extinguisher. Plaintiff, being the owner of a block of buildings in the city of Rochester, entered into a contract with the defendant by the terms of which the defendant agreed to equip said block of buildings with its automatic sprinkling system. A part of the equipment consisted of a tank of sufficient capacity to hold the necessary water for the operation of the plant, which the defendant contracted to furnish and 'place upon trestle work over the building and connect therewith water pipes for the purpose of filling the tank with water, for all of which the plaintiff agreed to pay the defendant $1,850. The defendant sublet to the firm of J. F. Montgomery & Son, of the city of Rochester, the furnishing of the tank. Montgomery & Son constructed the tank and placed it in position over the building, and upon water being let into it it was found to leak, and Montgomery & Son repaired it. One F. L. Bellows, the defendant’s secretary, had general charge of the work and of testing it. After -the tank was repaired and the pipes were in place, plaintiff’s servant, by direction of Bellows, let water into it for the purpose of testing the plant. The tank still leaked and the water ran out of it down into the building and damaged a quantity of goods and materials therein belonging to the plaintiff’s tenants. They severally assigned their ■claims for damages to the plaintiff, and he brought this action, which was duly referred, and a judgment was entered upon the report of the referee in favor of the plaintiff for the damages to the goods, and from said judgment this appeal was taken.

The tank was placed upon a trestle over a center brick fire wall, the top of which extended above the roof of the building. The water in leaking from the tank ran down this fire wall behind some tin flashing which was originally inserted into the brick wall, but which had settled and drawn away from the brick, and the water thus made its way into the building and caused the damage. The roof, notwithstanding the defect mentioned, was sufficient for the ordinary purposes of a roof.

The appellant contends that having sub-let the making of the tank to Montgomery & Son, who were responsible and competent builders, it is not liable to third parties for damages caused by the negligence of their sub-contractors. The tank in question was .a part of the equipment which the defendant had contracted to furnish. The defect which caused the damages was in the very .article which the defendant had contracted to furnish; and it may well be doubted if the rule suggested by the appellant has any •application in such a case. But without deciding that question, it has, we think, no application to this case for, as we have seen, the defendant’s agent had general supervision of the work, and personally directed Angel, the plaintiff’s servant, to let the water into the tank without investigating to ascertain if it would hold water. Angel had general charge of the building for the plaintiff, but he does not appear to have had any special information in regard to the work or the condition of the tank after the repairs were made. He very properly assumed that Bellows knew whether it was safe to fill the tank with water, and no negligence can be imputable to the plaintiff because of the act of Angel.

Whether the defendant had formally, as between itself and Montgomery & Son, accepted the tank as completed, is not material. Bellows was there to test the apparatus, and in order to do so it was necessary that the tank should be filled, and in •consequence of its defective condition the damage ensued.

The claims of the tenants for damages to their goods were assignable. Section 1912, Code of Civil Procedure.

The referee found that their claims had been properly assigned to the plaintiff, and no exception was taken to this finding.

We see no reason for a reversal of the judgment, and it .should be affirmed.

Judgment appealed from affirmed.

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


author: Dwight, P. J.

text:
    Charles A. Hausauer et al., Resp’ts, v. Sarah Dahlman et al., App’lts.

      (Supreme Court, General Term,, Fifth Department,

      Filed October 20, 1893.)

      ' Summary proceedings—Defense—Renewal of lease.
    The fact that the lease contained a covenant giving the lessee the privilege of renewal for a term of years at the same rent on giving a certain notice ; that such notice was given and the rent duly paid, is a complete defense to summary proceedings to remove him as a tenant at will or by sufferance. Sucli defense is not an equitable one, and a municipal court must take cognizance thereof.
    Appeal by the defendants from an order of the Erie special term denying their motion to vacate an injunction pendente lite.

      H. J. Swift, for app’lts; A. Moot, for resp’ts.
   Dwight, P. J.

This action was brought to obtain specific performance of an alleged agreement of the defendants to extend a lease of premises in Main street, in the city of Buffalo, which they ■had given the plaintiffs for the term of one year from May 1,1890, to cover a term of four years in addition thereto; and the injunction restrained the defendants, in the mean time, from prosecuting summary proceedings begun by them in the municipal court of Buffalo to remove the plaintiffs from the premises.

The complaint alleged the execution in writing and under seal, by the defendants, of the lease for one year with the privilege to the plaintiffs, at their option, to renew the same for four years more at the same annual rent and on the same conditions, on giving notice, three months beforehand, of their intention to do so; and provided that the defendants themselves should obtain an extension of their lease under which they let to the plaintiffs. The plaintiffs also allege that the defendants put them in possession of the premises on the 1st day of May, 1890, and that they have ever since continued in possession of the same “ under said written lease and agreement,” and that the plaintiffs have regularly paid and still pay the monthly rent (at the rate of $2,500 a. year) reserved by the said lease, although since the commencement of the summary proceedings referred to such rent has been paid under a stipulation that it shall not affect such proceedings;; that such proceedings were commenced in November, 1892, under a claim that the plaintiffs are tenants at will or by sufferance, and that the plaintiffs have answered in such proceedings, denying that they are tenants at will or by sufferance, and denying other material allegations of the petition. The complaint also alleges that they did in due time givje notice to the defendants that they did elect to renew the lease, as by its terms it was their privilege to do, for the further term of four years, and that one of the' defendants, acting for and with the authority of the defendants, agreed to such renewal.

It is a curious fact that the complaint contains no allegation that the defendants had procured an extension of their own lease, but no objection seems to have been made to the injunction on that ground, and some proof was made in the moving papers off the defendants to the effect that they had procured a new lease, though not on the terms and conditions of their former lease; whether such is “ an extension of their lease ” within the meaning of their agreement with the plaintiffs is, probably, a question to' be tried between the parties.

The injunction was prayed for, in the complaint, on the ground that the affirmative defense to the summary proceedings, above foreshadowed, was an equitable one only, and one of which the plaintiffs could not avail themselves in the municipal court. The-learned judge at special term held to the contrary, and was of' opinion that, as shown by a memorandum accompanying his decision, even under their general answer to the petition, the plaintiffs- could litigate the executory covenant to extend their lease four years in avoidance of the relief sought by that proceeding; ” but. he denied the motion to dissolve the injunction on the ground, that the plaintiffs “ should be given the opportunity to have their right to occupy the demised premises for four years determined in such manner as to bar further proceedings on the part of the defendants to disturb them in the occupancy of said premises, in the event that they are able to show that they are entitled to such extension.”

We go with the learned judge so far, at least, as to hold that the defense, here indicated, might have been, if it was not, and may still be, by an amendment to their answer in the summary proceedings, so stated as to constitute a complete defense to that proceeding which may be litigated in any court in which the proceeding is taken. Here was not a mere covenant on the part of the lessor to give a new lease on demand and on certain conditions, but a covenant that the lessees might, themselves, at their option, renew the lease for four years, by giving the notice required ; which notice was duly given and accepted by the defend.ants, and. the plaintiffs continued in possession under such renewal, paying the rent reserved thereby, down to the time of the commencement of the proceedings instituted to remove them summarily as tenants holding over after the expiration of their term. According to the allegations of the complaint the plaintiffs had done all that was required to be done by either party to effect a renewal of the lease for four years, provided always that the defendants have procured an extension of their lease within the meaning of the agreement, which is a fact which remains to be proved by the plaintiffs. The covenant in this case is, we believe, equivalent to a covenant that, on giving the required notice, the lease should continue in force for the additional term, and in either case the effect of the notice is, of itself, to create the new term without the execution of a new lease by the lessor. Thiebaud v. Bank of Vevay, 42 Ind., 212 ; Dix v. Atkins, 130 Mass., 171; Ranlet v. Cook, 44 N. H., 512. In Kelso v. Kelly, 1 Daly, 419, it was held that where the lease provided for a renewal at the option of the lessee and there was no provision for notice, his holding -over beyond the term was notice of 'his election to renew, and entitled him to hold the premises subject to the rent reserved by the original lease until the lessor performed his covenant by executing a new lease for the additional term.

It seems to us very clear that the allegations of the complaint in this action indicate a complete defense to the summary proceedings in question of which, if pleaded there, the municipal court of Buffalo must take cognizance, and that equity will not-interfere to supplant the jurisdiction of that court already acquired in the proceeding.

The order appealed from should be reversed and the motion to dissolve the injunction granted.

So ordered, with ten dollars costs and the disbursements of this appeal.

Haight, J., concurs; Lewis, J., not sitting.


text:
    In the Matter of the Application of The Highway Commissioners of the Town of Niagara to have flagmen placed at certain crossings.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    1. Bailroad—Petition for flagmen at crossings—Highway commissioners.
    The use of the term " highway commissioners” in a petition to compel the placing of flagmen at railroad crossings is a sufficient description of the official character of the persons named.
    8. Same.
    The omission of the individual names of the commissioners in the title to the petition is of no importance when they are individually named both in the body of the petition and in the verification.
    3. Same—Judicial notice.
    The court may take judicial notice of the statutes by which counties, towns, cities and villages are created.
    4. Same—Local authorities.
    Highway commissioners are the local authorities of the town within the meaning of § 88 of chap. 676, Laws 1893.

      5. Same—Character of crossing.
    It is not necessary that a petition under that statute should show that the crossing is dangerous beyond the fact that it is a crossing at grade.
    Appeal by the New York Central & Hudson River Railroad Company from an order of the county court of Niagara county denying its motion to dismiss the petition of the highway commission era

      D. H. McMillan, for app’lt; Eugene Cary, for resp’ts.
   Dwight, P. J.

The application was made under § 33 of chap. 676 of the Laws of 1892, by the highway commissioners of the town of Niagara, in the county of Niagara, to compel the appellant to station flagmen or to erect gates at two crossings by its-tracks of a highway of that town, known as the River road. The particular provision of the statute referred to is in the following terms: “At any point where a railroad crosses a * * * highway * * * at grade * * * and the corporation owning or operating such railroad refuses, upon request of the local authorities, to station a flagman or erect gates to be opened and closed when an engine or train passes, the supreme court or the county court may, upon the application of the local authorities, and upon ten days’ notice to the corporation, order that a flagman be stationed at such point, or that gates shall be erected thereat, and that a person be stationed to open and close them when an engine or train passes, or may make such other order respecting the same as it deems proper.”

The application in this case was made to the county court by the verified petition of three persons who were named in the introductory clause, and described as the “ highway commissioners; of the town of Niagara, Niagara county, N. Y.” The petition was also signed in the names of the same three persons as highway: commissioners, etc., and was verified by them. The allegations of the petition were, in substance, (1) that the petitioners were the-highway commissioners of the town of Niagara; (2) that the N. Y. C. & H. R. R. R. Co. was a domestic railroad corporation, and was operating its road through the said town of Niagara ; (3) that said railroad crossed the highway, above mentioned, at grade at. two points in said town .particularlydescribed, that there were no flagmen or gates or other means of protection at those points of crossing, and that such crossings were dangerous for the passage of persons and vehicles; (4) that the petitioners had requested said railroad company to station flagmen or erect gates at those crossings, and that said company had refused to do so; and the prayer of the petition is for the relief prescribed by the statute above quoted.

Due notice in writing was given to the railroad company of the time and place at which the application would be made to the county court on the petition, a copy of which was served with the notice, and the notice, as well as the petition, particularly described the location of the two crossings in question.

At the time mentioned in the notice, the railroad company appeared “ specially ’’ - by its attorney and moved to dismiss the petition “ on the ground that it does not set forth facts sufficient to give the court jurisdiction, or to entitle the petitioners to the relief authorized by the statute;” and on the more particular grounds, in substance, as follows: • (1.) That there is no such office in the towns as that of “Highway Commissioners,” and that the petitioners arc not named individually in the title to the proceeding. (2.) That the petition does not show that the town of Niagara is a political division of the county of Niagara. (3.) That it does not show that the petitioners are the “local authorities” of the town, or that the crossings in question are within their jurisdiction, and not within the jurisdiction of some village of the town. (4.) That it does not show that the local authorities made the request of the railroad company required by the statute. (5.) That it does not set forth any facts tending to-show that the crossings are dangerous or in w.hat particular they are so. (6.) That it does not set forth facts sufficient to inform the court of the character and surroundings of the crossings, so that it may exercise an intelligent discretion in the matter. The court denied the motion to dismiss the petition on the grounds stated and gave the railroad company ten days in which to file an answer thereto ; and from that order this appeal was taken.

We think it may well be questioned whether the order was appealable, since it was not a final order, nor one, of itself, affecting a substantial right, but was, rather, a ruling of the court on a question arising in the course of the hearing, which ruling may be reviewed on appeal from the final order. But counsel for the appellant urge that the motion was in the nature of an oral demurrer and that the appearance by them was special for the purpose of making that motion only, and with the view of making the present a test case under the new statute. We have decided to entertain the appeal—especially as the objection is not. made on the part of the respondent—and for the reasons stated we are disposed to give more detailed consideration to the several grounds of the motion than we should otherwise feel called upon to do.

And, First. It is true that the statutory designation of those officers of the town who are charged with the care of its highways is “ commissioners of highways,” and not “ highway commissioners ;” but the latter is the more common designation in popular use. Its use in this petition was a sufficient description of the official character of the persons named, and could have misled no one. The omission of the individual names of the commissioners in the title to the petition was, of course, of no importance when they were individually named both in the body of the petition and in the verification.

Second. The town of Niagara is twice designated in the petition as of the county of Niagara and state of New York, and it was, no doubt, the privilege and the duty of the county court of that county to take judicial notice of the correctness, or otherwise, of that designation. All the courts of the state take judicial cognizance of its statutes by which counties, towns, cities and villages are created. Woods v. People, 1 Hun, 381.

Third. The petition expressly alleges that the petitioners are the highway commissioners of the town ; such commissioners are ■certainly local authorities of the town, and we think they may he fairly regarded as the local authorities within the meaning of the statute in question for the reason that they are the authorities who are particularly charged with the care of the highways of the town. There is no presumption that there are any incorporated villages in the town of Niagara, and a highway within the boundaries of the town will be presumed to be within the jurisdiction of of the commissioners of highways.

Fourth. This objection is embraced in the last. The petition ■does show that the request was made by the highway commissioners, and we hold that they are the local authorities within the meaning of the statute.

Fifth. This is the objection of most importance of those made to the petition. It is, in effect, that the petition does not state facts to show that the crossings are dangerous, but only the conclusion that they are so ; and counsel in his argument characterizes the allegation as a conclusion of law. It undoubtedly is a conclusion of fact, but as such we think it a sufficient allegation to meet the requirements of the statute. That statute is exceedingly general and comprehensive in its terms. It requires only that there should be a crossing at grade, an absence of flagmen or gates, a request for one or the other by the local authorities, a refusal by the railroad company, and an application to the court on a notice of ten days. It does not even require a petition at all, nor prescribe any particular mode in which the application shall be made. But it may be conceded that a petition, or its •equivalent, is necessary in order to present the case to the court, and that such petition must contain all the allegations necessary to bring the case within the conditions prescribed by the statute. But certainly the petition need do no more. It need not allege any facts which the statute does not require to be shown in order to give the court jurisdiction of the application, and entitle the petitioners to the remedy provided.

It will be seen that there is no requirement that the crossing should be shown to be a dangerous one, beyond the fact that it is a crossing at grade, and it is undoubtedly true, as the experience of many years in this country has demonstrated, that all crossings at grade are, in a greater or less degree, dangerous.

The sixth objection to the petition is substantially the same, in effect, as the fifth, and it points to no particular in which the petition fails to meet the requirements of the statute.

It was, undoubtedly, the intention of the legislature to give a wide discretion to the courts named in the matter of requiring needed safeguards against the dangers which are inherent in the “ grade crossing,” and while that discretion must be wisely exercised with a view to the necessities of railway traffic as well as to the safety of the public highways, the beneficent purpose of the statute will not be thwarted by the imposition of requirements and conditions which are not prescribed by the statute itself.

We are clearly of the opinion that none of the objections to the petition in this case are well taken, and that the order denying the motion to dismiss must be affirmed.

Order of the county court of Niagara county, appealed from, ¡affirmed, with ten dollars costs and disbursements, and the case ¡remitted to that court to proceed therein.

Lewis, Haight and Bradley, JJ., concur.


text:
    Emery Nash, Ex’r of R. Belle Woodin, Deceased, App'lt, v. Sarah M. Springstead, Resp’t.

      (Supreme Court, General Term,, Fifth Department,

      Filed October 20, 1893.)

    .Landlord and tenant—Evidence.
    Defendant rented certain premises from plaintiff for two weeks, but declined to take them for a longer term at the price asked. She continued in possession for seven months beyond the time specified. In an action for rent for such term, Held, that it was error to exclude evidence to show that after the expiration of the first term she rented the premises from plaintiff’s husband, who was a joint owner, and paid the rent to him, as such evidence would rebut the presumption of an acceptance of plaintiff’s proposition raised by such continued occupation.
    Appeal by the plaintiff from a judgment of the county court •of Chautauqua county, reversing the judgment of a justice of the peace.
    A. C. Pritchard, for app’lt; Bootey, Fowler & Weeks, for resp’t.
   Dwight, P. J.

The action was commenced by the plaintiff’s testatrix in her lifetime for the rent of a house, and her executor has since been substituted as plaintiff therein. The complaint alleges a contract of lease and occupation under it for a period of seven and a half months, whereby the defendant became indebted to the plaintiff in the sum of sixty dollars, of which no part had been paid except the sum of one dollar, and the justice gave judgment for the balance of fifty-nine dollars. The answer contained a, general denial and the further defense, among others, that the defendant rented the house from the husband of the plaintiff, who was a part owner with her of the property, and payment of the rent to him. The plaintiff demurred to the last mentioned defense, and that demurrer was sustained by the justice. This ruling was, at least technically, erroneous, because the practice in justice’s court permits of no demurrer to an answer except to a counterclaim. Code Civ. Pro., § 2935, sub. 4. The evidence showed that the defendant applied to the plaintiff for the use of the house for a week or two and desired to know how much she would ask for it by the month for a longer time. The plaintiff told her that she might have it for the short time mentioned for one dollar, and proposed to charge her eight dollars per month for it if she wanted it for the winter. The defendant agreed to pay her the one dollar for the week or two, but declined to rent it for a longer period, at the price named. The defendant went into the house under the agreement made with the plaintiff, and paid her the one dollar agreed upon, but she remained in the occupation of the house for the period mentioned in the complaint. On the trial she offered evidence to show that after the expiration of the week or two she rented the house for the remainder of the time from the husband of the plaintiff and joint owner of the property, and paid him there-, for. This evidence was excluded by the justice, and it must have been, chiefly, on the ground of this ruling that the judgment was reversed in the county court. We think the ruling was error, for which the judgment was properly reversed.

Of course if there had been an agreement between the parties for the renting of the property for the longer period mentioned, and the defendant had gone into occupation under that agreement, she would not have been at liberty during such occupation to dispute the title of the plaintiff or to attorn to any other person. But it is conceded that there was no such express agreement between the parties at any time, and that the defendant went into occupation of the property declining to accept the plaintiff’s proposition for a longer term than a week or two. Accordingly the contention of the plaintiff is that the fact of the defendant’s continuing in occupation after the expiration of the brief term'raises the presumption of the acceptance at that time of the plaintiff’s proposition for the longer term and an implied contract to pay therefor at the price proposed. The argument is legitimate, and so long as her continued occupation was unexplained the presumption was sufficient to justify the conclusion contended for. ‘ But it was to rebut that presumption, and account for the continued occupancy of the defendant on another theory than that of the acceptance of the plaintiff’s proposition, that the evidence in question was offered. That evidence would by no means have been conclusive, it may have been of but little weight, but it was, in our opinion, evidence to which the defendant was entitled as tending to rebut a presumption of fact upon which the case of the plaintiff depended.

For the error involved in the rejection of that testimony we think the judgment of the justice was properly reversed and that the judgment of the county court must be affirmed.

Judgment of the county court of Chautauqua county affirmed, with costs.

Lewis and Haight, JJ., concur.


text:
    Pierre Meisch, Resp’t, v. The Rochester Electric Railway Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    1. Railroad—Negligence —Dogs on track.
    Plaintiff was superintendent of a cemetery and as such kept watch dogs to guard it. At a time when there was deep snow on the ground and the same had been thrown up from defendant’s track on both sides tile dogs were returning home along the track when one of defendant’s cars came along. The motor man rang the gong, hut. did not slacken the rate of speed of the car, and overtook and ran over one dog as it was about to turn into the cut in the bank at plaintiff’s gate. Held, that even if the dog was a trespasser the motorman was not justified in running him down, and the question whether in the exercise of reasonable diligence he could have discovered the danger in time to avoid it was a question for the jury.

      3. Same—Damages.
    Where one who has had experience in raising and selling dogs has testified that a dog of this kind trained to watch was worth from §100 to a verdict for $96.83 is not excessive.
    Appeal by the defendant from a judgment of the county court of Monroe county, entered on the verdict of a jury, in an action first tried in the municipal court of Rochester and appealed to the county court for a new trial; also from an order denying defendant’s motion for a new trial on the minutes of the court.

      J. S. Thompson, for app’lt; A. E. Sutherland, for resp’t.
   Dwight, P. J.

The action was to recover damages for the alleged negligent killing of a valuable young dog. We think the judgment is right and should be affirmed. The facts which the evidence tended to establish and upon which the jury had a right to base their verdict were briefly as follows. The plaintiff was superintendent of the Holy Sepulchre Cemetery on the Boulevard or Charlotte road, extending north from Rochester, along and upon which the railroad of the defendant was constructed, and its

electric cars were run. The plaintiff’s house was near the north end of the cemetery property, which consisted of about 800 acres lying on both sides of the road. The plaintiff, having the charge and oversight of all this property, found it useful to keep one or more watch dogs on the premises, and at the time mentioned in the evidence he had two, one an old dog which he had trained to patrol the premises several times a day, passing, up and down the road for that purpose, and the other, the dog in question. He was a v§ry large and well bred English mastiff, only eleven months old, and was accustomed to accompany the old dog in his rounds, and was thus, in the most effective way, becoming trained to perform the same duties. On the day of the accident the two dogs were returning together from the southerly portion of the property to the plaintiff’s house, and had taken the railroad track for that purpose.

It was in January, and there was deep snow on the ground,, some of which had been thrown from the track by the snow plow, and lay piled up to the height of two feet on either side. A water tank stood about 1,000 feet south from the plaintiff’s; house, and at that point there were cross openings through the snow banks, but no others going north until the plaintiff’s gate was reached. As the defendant’s car Ho. 14 passed the water tank going north on the afternoon in question the two dogs were plainly to be seen about 825 feet ahead, running on the track between the banks of snow towards their home. The car was running at a speed of from ten to twelve miles an hour; the motorman struck his gong, but made no effort to check the speed of the car; the older dog leaped from the track, but the younger one failed to do so, and was run down and killed just as he reached and was on the point of turning through the cut in the snow bank opposite his master’s gate; he had ran two-thirds the distance the car had done in the same time, and a very slight reduction in the speed of the latter at any time down to the last moment of the race would have enabled him to escape without injury.

Upon these facts, which, as we have said, were so well supported by the evidence that the jury had a right to accept them -as the facts of the case, there can be no doubt of the plaintiff’s right to recover so far as the question of the defendant’s negligence was concerned. ■ Even if -the dog was a trespasser on the track the motorman was not justified in running him down; but it was his duty, on discovering that there was danger of -doing so, to slacken the speed of the car; and it was clearly -a question for the jury whether in the exercise of reasonable vigilance he might have discovered the danger in time 'to avert it. Watkins v. Atlantic Avenue R. R. Co., 20 Hun, 237 ; Watson v. Broadway & Seventh Ave. R. R. Co., 6 St. Rep., 538; S. C., 18 id., 1029; Swift v. S. I. R. T. Co., 33 id., 604'; Bernhard v. Rochester Ry. Co., 51 id., 880.

It is doubtful whether there was 'any evidence in the case which tended to charge the plaintiff with contributory negligence in permitting the dogs to be at large in the highway. The employer of the plaintiff was the owner of the land-on both sides of the highway, and of the fee in the highway itself, subject only to the easement of passage of the public, including the defendant, and his right to make use of the highway for the excursions of his dogs in the business of guarding the premises-so exposed to'trespassers can hardly be questioned. But it was-at least a question for the jury whether he was -guilty of any negligence in respect to the care of the dogs On the occasion in question.

These views, if correct, dispose of the defendant's exception to the denial of its motions for a nonsuit and for the direction of a verdict.

The single exception taken by the defendant :to any ruling on the admission of evidence is not discussed on the argument here, and it seems to be without merit. The same may be said of the defendant’s exception to the refusal of the court to charge that no competent evidence had been given of the market value of the dog. -Evidence was given on that -subject by the witness Weighed, and was received without objection, except on the ground that the -witness—not the evidence—was incompetent. But that witness testified that he made a practice of raising and training dogs, exhibiting them at shows and buying and selling dogs; that he. knew their market value in Rochester, and that a mastiff trained to watch was worth from $100 to $200. This-evidence was uncontradicted and the verdict of the jury was for $96.83. The motion for a new trial, therefore, on the ground of excessive damages, in addition to the ground stated in the motion for a non-suit, was properly denied.

The judgment and order appealed from should be affirmed.

Judgment and order of the county court of Monroe county, appealed from, affirmed.

Lewis and Haight, JJ., concur.


text:
    The Rochester Distilling Co., Pl’ff, v. Martin C. O’Brien, Def't.

      (Supreme Court, General Term, Fifth Department,

      Filed October 20, 1893.)

    Attorneys—Lien—Counterclaim.
    An attorney’s lien is not a counterclaim nor the subject of counterclaim, and an answer setting up such a lien in an action for conversion of moneys collected by defendant for plaintiff is not admitted by a failure to reply so as to authorize an allowance of the amount of such lien without proof.
    Motion by the defendant for a new trial on a case and exceptions ordered to be heard in the first instance at general term, after a verdict for the plaintiff directed by the court at the Monroe circuit.

      L. Hasbrouck, for motion; G. D. Reed, opposed.
   Dwight, P. J.

The action was against an attorney at law to recover damages for the conversion of money of the plaintiff, collected and received by the defendant as such attorney. The complaint contained all the allegations necessary to bring the case within the provisions of subdivision 2 of § 549 of the Code of Civil Procedure, rendering the defendant liable to be arrested in the action. The answer of the defendant, besides a denial of some of the allegations of the complaint, pleaded a counterclaim for the value of professional services rendered by him to the plaintiff “ in prosecuting a certain suit and in counselling and advising said plaintiff, and in drawing and copying various instruments in writing for the plaintiff.” There was no allegation that the services which are the basis of the alleged counterclaim., or any part of them, were rendered in the same action in which the money was collected, for the recovery of which this action was brought.

The plaintiff did not serve a reply, but went to trial on the issues made by the complaint and answer. On the trial it gave evidence tending to establish its cause of action; The defendant gave no evidence, but asked to be allowed the amount of his counterclaim on the ground that the same was admitted by the failure to reply. The court denied the request and directed a verdict for the plaintiff for the amount of its cause of action—holding, in effect, that the action was one sounding in tort; that the new matter set up in the answer was neither a cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff’s action,nor was it connected with the subject of the action, and that it was, therefore, not allowable as a counterclaim. Code Civ. Pro., § 501, sub. 1.

We have no doubt of the correctness of this holding and of the consequent direction of a verdict. Nor is the conclusion weakened by the fact now pointed out by counsel for the defendant, that the answer avers all the facts necessary to entitle' the defendant to a lien on the moneys in question to the extent of the value of the services mentioned in the answer. Such is the answer and such the law applicable to it. The attorney is entitled to a lien upon all moneys of bis client which come into his hands for all professional services rendered that client, whether or not in the action or matter in which the moneys are collected. Ward v. Craig, 87 N. Y., 550, 560 ; Bowling Green Sav'gs Bk v. Todd, 52 id., 489. And the answer sufficiently avers a lien when it states the facts which give rise to a lien without stating the legal conclusion which results therefrom. So it may be conceded that this answer sets up a lien in favor of the defendant, on the moneys in his hands, to the extent of the value of his services alleged; but a lien is not a counterclaim. It constitutes a defense by way of avoidance. The answer implies an admission that the money was received by the defendant, and that he refused to pay it over on demand, audit justifies such refusal on the ground that he has a lien on those moneys for the services rendered by him.

As we have said, a lien is not a counterclaim, nor is it the subject of counterclaim. A lien is a certain right or control which one man has in or over the property of another ; in this case, the right of the defendant to hold or retain the moneys of the plaintiff, in his hands, to satisfy his claim for services. The lien is something entirely distinct, from the claim; it is in the nature of security for the claim; it may or may not be asserted as such, and the claim may be enforced with or without its aid.

In no sense, therefore, did the defendant’s cause of action either arise out of the transaction alleged in the complaint, nor was it connected with the subject of the plaintiff’s action. His lien was related to the plaintiff’s cause of action only as a defense to it, and his lien was not his cause of action, but only an incident thereto. See Gottler v. Babcock, 7 Abb. Pr., 892, note ; Rogers v. King, 65 Barb., 495. As a defense the lien of the defendant was sufficiently averred, but it required to be proved. It is only -defenses by way of counterclaim which are admitted by failure to reply. The fault of this defense, therefore, was not in the pleading, but in the proof. No evidence having been given in support of the answer, the court necessarily directed a verdict in favor of the plaintiff for the cause of action established in its behalf.

The defendant’s exception to the direction of a verdict must, therefore, be disallowed, his motion for a new trial denied, and judgment ordered for the plaintiff on the verdict.

So ordered, with costs.

Lewis, Haight and Bradley, JJ., concur.


author: Adams, J.

text:
    In the Matter of the Application of Edward M. Redmond for an Order to the County Clerk of Monroe County.

      (Supreme Court, Chambers, Monroe County,

      Filed November 1, 1893.)

    1. Election—NoMmATions-rREG-uiAitiTY.
    What constitutes regularity in a political party depends upon the usages of the party itself, and not upon any rules or regulations which may seem just and proper to courts or judges.
    2. ’Same—Ballot.
    A person who has received a nomination at the hands of a convention whose claims to regularity have been submitted to the supreme authority within the party and the state, and which have by that body been declared unfounded, cannot be regarded as a regular nominee of his party and is not entitled to have his name printed on the official party ballot.
    Application for an order requiring the county clerk to print the name of the applicant upon the official democratic ballot as the candidate for member of assembly.

      Theodore Bacon and Ivan Powers, for motion; George Raines, opposed.
   Adams, J.

This is a proceeding instituted under the provisions of § 65 of chap. 680 of the Laws of 1892.

The applicant claims to be the regularly nominated candidate of the democratic party for member of assembly in the second district of Monroe county, and insists that his name be printed, as such candidate, upon the official ballot to be voted at the ensuing election. The papers presented upon the hearing are exceedingly voluminous, and it is to be regretted that the limitations of time and opportunity render a more careful and deliberate examination of the same impossible. However, the essential facts of the case, and perhaps all which are material to its determination, are virtually conceded, and it may be well to recapitulate them in their chronological order.

Prior to the year 1892, the county of Monroe contained three assembly districts, «the second of which consisted of the sixteen wards constituting the city of Rochester. In that year an enumeration was had, in consequence of which a readjustment of such districts was made. In the meantime the charter of the city of Rochester was revised in such manner as to increase the number of wards to twenty and to also obliterate to a considerable extent, at least, the former ward lines.

The enumeration and re-adjustment just referred to were not followed by any change in the number of assembly districts in Monroe county, but the second district was made to include the first nine and the sixteenth wards of the city, while the remaining ten wards were divided between the first and third districts. This alteration of geographical lines so changed the territorial condition of each district as to leave the party without any duly constituted authority to call conventions in either one of them, and in this emergency recourse was had to the city central committee, which assumed' to act for the second district. A convention was called by this body, its authority to call the same being recognized and acquiesced in with practical unanimity, and at this convention, which was held on the 18th of October, 1892, the chairmen of the several ward committees of the wards constituting the district were duly authorized to call future conventions. Before it became necessary for the committee thus constituted to take any action, the chairmanship of several of the ward committees, for various reasons, became vacant, and while this condition of things existed it became apparent that there were two hostile factions within the democratic party of the county, each of which was attempting to obtain control of the party machinery. I do not deem it necessary to discuss the motives; which actuated the contention of the rival- factions* nor the methods which- were employed to accomplish the'object-each was striving to.attain. Upon this subject the affidavits are quite conflicting, but it is reasonable to assume that the methods which unfortunately obtain in all such contests were resorted to by each faction as the necessities of the case seemed to require. Be that as it may, it does appear that a committee, which it is claimed, and with apparent reason, consisted of the-majority of the chairmen of the ward committees in the second assembly district, called a convention to be held on the 31st day of August, 1893, for the purpose of electing three delegates-to the democratic state convention, appointed to be held on the 5th day of, October following. In pursuance of this call caucuses or primaries were held in the various wards constituting-the district and the convention duly assembled and elected delegates to the state convention.

It is also made to appear that at the county convention held, in the year 1892 a resolution was adopted investing the county committee of the Democratic party with power to remove from, office any and all ward and town district and city committees, and; to provide, by calling new caucuses, for the appointment of new committees, arid to prescribe all rules of procedure of party committees in the organization of the party and its conventions. After the call for the convention of August 31st had been issued and several ward caucuses had been held, and the fact had become sufficiently developed that the factional warfare of the district had assumed such proportions as to render two conventions probable, the county committee was convened and the representatives of the-contending factions were summoned before it, but the one which,, for the purposes of this proceeding, may be styled the Bendon. faction refused to acknowledge any supervisory power as residing-in the county committee and disregarded the summons. Thereupon the county committee took action and declared all conventions and caucuses theretofore called illegal, and in an address to its constituents set forth what, it is claimed, were the reasons for its action and also provided for the holding of a convention in each of the assembly districts, and, to that end, prescribed rules and regulations for new primary meetings. This action on the part of the county committee was apparently acquiesced in by the party in the first and third districts, but, as has already been seen, the Bendon faction refused to surrender the advantage which it had gained, and, as a consequence, two conventions for the election of delegates were held and two sets of delegates-presented themselves for admission to the state convention. The contest thus precipitated upon the state convention was met by that body ; a hearing before the proper committee was had ; a report was made and by a nearly unanimous vote the convention called by the county committee was recognized as the regular ■ convention of the party; its delegates were admitted and the claims of the Bendon delegates were disregarded. Notwithstanding this action of the state convention the Bendon committee continued to assume the right to represent the party and proceeded to call a district nominating convention, which was held on the 18th of October, 1898, and at which the above named Edward M-Redmond was placed in nomination for member of assembly.

In the meantime another convention was called by the same authority which was recognized by the state convention as regular, and this convention placed in nomination one Harry M. Schall. A certificate of each nomination, which appears to conform, in all respects, to the requirements of the statute, was filed in the office of the county clerk and that official thereupon decided." that Schall was the regular nominee of the party, and that his name must appear upon the official ballot. It is to obtain a review and a reversal of the decision of the county clerk that this proceeding has been instituted.

The wisdom of the legislature in imposing upon courts and. judges the duty of determining the regularity of political nominations is something which may well be questioned, for it is almost impossible to reach a conclusion in such a case without-subjecting the tribunal which renders it to a charge of partisanship, and when this charge is once made, however unfounded it-may be, its inevitable tendency is to bring the courts and the bench into disrepute. The present case is perhaps as far from such embarrassment as any similar case can possibly be, but at any rate the duty is imposed and it is therefore one which must-be met and discharged with the same ability and impartiality as-any other duty, disagreeable and distasteful though it may be.

The act under which this proceeding lias been brought is- what-is known as the “election law” of the state, and however imperfect it may be in some of its provisions, its ultimate design is undoubtedly to promote the independence of voters and to purify and regulate our public elections. Tile act in a variety of ways' recognizes what the experience of all teaches, that under our system of government the affairs of the state are conducted through the medium of the representatives of political parties and that, of necessity, such parties must to a certain extent provide for their conduct of management certain rules and regulations,. which are not inaptly termed party machinery. That such, machinery is frequently employed to accomplish- personal and factional ends cannot be denied; that it is sometimes used to crush any expression of sentiment by, and to defeat the- desires-of, a large majority of the political party it is supposed to represent is undoubtedly true; but nevertheless the party cannot exist without its party machinery, and if that machinery is used oppressively and' for improper purposes the right and the power to remedy the evil undoubtedly resides in the party itself.’ And so it will be found, that in the fiftieth- section of the act in question provision is made for the conduct of political' parties by means of eon ventions and primaries and by such rules and regulations as those bodies may adopt. But independent of said act, it is a fact so well known and of such long continued existence as to entitle same to judicial recognition, that political parties have their territorial divisions- and that while each division is within certain limitations a law unto itself, so far as a particular territory it assumes to represent is •concerned, yet, by party usage, each of said divisions owes and yields allegiance to some higher power. To illustrate, it frequently happens that a county committee prescribes times and regulations for the holding of primary meetings, and party usage requires that the rules thus prescribed shall be observed. In the same manner, a state convention, like our state legislature, is the sole judge of the election of its own members, and when it has once passed judgment upon conflicting claims where questions of regularity only are concerned, it seems to me that its determination should be accepted as final. It may be unjust, it may be ih direct violation of the equities of any given case, and, as contended by counsel in theory, it may be right and proper to disregard such an adjudication and to insist that no party division may-exercise any supervisory control over any smaller division ; but if such a theory wére put into practice it would be subversive of party discipline and would reduce political parties to mere associations of independent and irresponsible mobs. Ro such rule as -the one contended for obtains in any voluntary organization, but on the contrary the very term organization implies a recognition of order and an obedience to duly constituted authority. These •observations lead, of necessity, to the conclusion that where a person allies himself with a political party he tacitly acknowledges ■allegiance to all the rules and regulations of that party as enunciated or expressed by what party usage recognizes as the supreme -or superior authority of the organization. The recognition of this principle does not compel one to follow blindly the dictates of party nor to vote for - incompetent or unfit candidates, for he still possesses the inalienable right of severing either permanently or temporarily his party relations. Reither does it prevent any person, with a sufficient number of followers who desire his election to any office, from being a candidate for that office in the manner provided by the statute, but he cannot claim to be the nominee or ¡representative of a political party unless he has been first regularly nominated by that party, and what constitutes regularity depends, as I think has been shown, upon the usages of the party itself and not upon any rules or regulations which may seem just and proper to courts or judges.

It follows that the applicant having received his nomination at the hands of a convention whose claims to regularity have been .submitted to the supreme authority within the party and the state and whieh have by that body been declared unfounded, -cannot be regarded as a regular nominee of his party and is consequently not entitled to haVe his name printed upon the official democratic ballot. His application must therefore be denied and the decision of the county clerk affirmed.


text:
    In the Matter of the Application of William J. Pollard for an order to the Seneca County Clerk.

      (Supreme Court, Chambers, Monroe County,

      Filed November 2, 1893.)

    -Election—Political parties—Begularity.
    Courts will interfere in contests between factions of a political party only in cases where there has been no adjudication on the question of regularity by some division of the party which is conceded to be superior in point of authority to the one in which the contention arose, provided the question of good faith in the making of such adjudication is not involved.
    Application under § 65 of chap. 680, Laws 1892, for an order .to the county clerk of Seneca county.
    W. McDonald, for motion ; Mr. Lewis, opposed.
   Adams, J.

The controversy which has resulted in this appli'Cation is one which arose in the year 1891, between two conflicting factions of the Republican party in Seneca county, each of which claimed to be "regular in its organization. At the time .mentioned, a proceeding similar to this was instituted for the purpose of obtaining a judicial determination of the matter, and, .after a careful examination of the papers submitted I found myself constrained to decide in.favor of that element in the party known as the Patterson faction, and my reasons therefor were stated in an opinion which was designed to cover all the facts of the case. Matter of Woodworth, 16 N. Y. Supp., 147. This decision was subsequently affirmed by the general term, 64 Hun, 522 ; 46 St. Rep., 432, and the following year was approved by my learned associate, Mr. Justice Bradley.

notwithstanding these several adjudications, every state convention and every judicial, congressional and senatorial convention of the district in which Seneca county is located, which has been held Since they were rendered, has seen fit to ignore the same and to recognize the opposing, or Mongin faction, as the only lawful representative of the party. The Patterson delegates have been refused admission to all of these conventions to which delegates were sent, while those of the Mongin faction were received into full fellowship, and the county committee of that faction has been made the custodian of such funds and documents as were distributed by the state committee. This being the situation, I am again asked to determine the question of regularity upon facts which, other than as above stated, are precisely the same as those which existed at the time the first adjudication was had. The proposition, therefore, which presents itself is simply this: Shall the precedent which "has been established by court and judges, or that which has been ■established by political conventions, be followed?

When this controversy first required a judicial determination it became necessary to decide it upon such facts as were established by affidavits, unaided by the action of any convention of the party; and as those facts were made to appear, I had no .difficulty in reaching the conclusion before mentioned. I am still satisfied that such conclusion was justified, and should now adopt, it without hesitation were- it not for the fact that a different one has been so uniformly reached by the party conventions. In de-' termin-ing a question similar to this¡ which, arose- in Monroe-county,, In re Redmond, where the question of regularity had been passed upon by the state convention of the democratic party, I have just held that the action of that body must be regarded as conclusive,, and I see no reason why the same rule- should not obtain in this, case. The only difference is that here the state organization did not pass upon th.e question until after it had been determined judicially, but nevertheless both factions submitted their claims, to that body,, and for the reasons stated in- the opinion in the Redmond case I think the defeated party must now acqu-iesce in its-decision.

I am aware that this view is at variance with the one expressed by me upon the former hearing, and it likewise "appears to be in conflict with that entertained by Justice Bradley in his opinion in this same matter, but so far as any contrary view appears in my own opinion it will be found to be merely the expression of an opinion which was not called for by the facts of the case, and it is one which upon more- deliberate reflection 1 am disposed to-modify. The conflict between the views of Justice Bradley is-more apparent than real, inasmuch as it now appears that, since his decision was made, the regularity of the Mongin faction has been passed upon by several additional conventions-, and that the opposing faction has so far acquiesced in -their decisions as to omit, in more than one instance to "make any further demand for recognition.

I still think, as already stated, that the title to regularity of the Patterson faction was pretty clearly established upon the original hearing, and that it would, in view of the provision, of thé statute which authorizes this proceeding, have been no more than courteous for the party conventions to have adopted the decision of the general term, which was deliberately made after a careful and impartial hearing; but there is no way in which they can be compelled to do , so, and consequently it seems to me that the only rule for courts and judges to adopt in this and all other similar-contests is that they will interfere only in cases where there has-been no adjudication of the question of regularity by some division of the party which is conceded to be superior in point of authority to the one in which the contention arose, provided, of course, that the question of good faith in the making of such adjudication is not involved.

The adoption of a different rule will inevitably tend to bring party organizations and the courts into unseemly conflicts over questions which are peculiarly "within the cognizance of the former-tribunals, a result which most certainly ought, if possible, to be; avoided.

The application must be denied, and the decision of the clerk of Seneca county affirmed.


author: McAdam, J.

text:
    James Stanley, App’lt, v. Richard Pollard, Resp't.

      (New York Superior Court, General Term,

      Filed October 24, 1893.)

    1. Contract—Restraint op trade.
    A covenant in consideration of a contract of employment as salesman for a soap manufactory during the pleasure of the employer, which provides that the employe agrees that he will not engage in the business carried on by his employer within the city of New York, for himself or any person or persons, directly or indirectly, for a period of two years after leaving the employment, although in restraint of trade, is so limited as to time and place as to violate no rule of public policy.
    3. Same—Injunction,
    Under the circumstances, however, it is not an abuse of discretion for the court to modify an injunction pendente lite in an action to enforce such covenant so as to “ permit the defendant to purchase soap from manufacturers and sell the same.”
    Appeal by plaintiff from portion of an order made at special •term modif ying a temporary injunction.

      Rabe & Keller, for app’lt; John H. Parsons, for resp’t.
   McAdam, J.

The action was to enjoin the defendant from violating certain conditions of a written agreement bearing date •January 24, 1893. The instrument recites that the plaintiff is engaged in the soap manufacturing business, that he is about to employ the defendant as driver and salesman, “ during the pleasure •of the plaintiff,” at a weekly salary, that he may impart to the defendant certain trade secrets and the names of his customers. The defendant in consideration thereof agrees that he will never make known any of the secrets, or other information he may receive, .and he covenants 1S that within the city and county of Hew York, he will not for himself nor for any person or persons, directly or indirectly, engage in the business now carried on by the plaintiff, nor in any similar business, for the period of two years after leaving the employment of the plaintiff." The defendant left such employment in the fall of 1892, and commenced vending soap with a horse and wagon to patrons within the prohibited territory.

This, with an allegation that the defendant has solicited and taken customers from the plaintiff, are the main grievances of which the plaintiff complains. At the time of commencing the action the plaintiff obtained an ex parte order enjoining the defendant from engaging, either on liis own account or as driver, salesman, representative or agent of another, in the business of selling soap within the city of Hew York, during the life of the covenant. Upon the hearing of the motion to continue the injunction, the judge presiding at. special term modified the order “ so as to permit the defendant to purchase soap from manufacturers and sell the same,” and in this modified form the original injunction order was continued. The plaintiff appeals from so much of the order as contains the modification aforesaid. This is the only matter we are called upon to review. The covenant was ■seemingly broad enough to have justified the continuance of the injunction without the modification- to which the plaintiff objects. The stipulation, though in restraint of trade, was partial, not gen* eral, and so limited both as to time and place as to violate no rule of public policy. Diamond Match Co. v. Roeber, 106 N. Y., 473 ; 11 St. Rep., 47; Leslie v. Lorillard, 110 N. Y., 519; 18 St. Rep., 520; Good v. Daland, 121 N. Y., 1; 30 St. Rep., 636; Tode v. Gross, 127 N. Y., 480 ; 40 St. Rep., 300. Yet the court had before it the significant fact that the sole inducement to the covenant on the part of the defendant was at most a weekly employment terminable “ at the pleasure ” of the employer, and the further circumstance that it might be deemed inequitable in advance of the trial to enforce the covenant further than the beneficial rights of the plaintiff under the agreement imperatively required summary protection by injunctive relief. See Hodge v. Sloan, 107 N. Y., 244; 11 St. Rep., 770. These considerations-may have influenced the modification. At all events, no absolute right was withheld from the plaintiff, nor was the discretion reposed in the court abused.

The-plaintiff at the trial may perhaps succeed in establishing a. legal right to more relief than he has already obtained, but in the meantime the order appealed from must, for the reasons stated, be affirmed, with costs.

Freedman, J., concurs.


text:
    Katherine Williams, App’lt, v. George H. Huber et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed October 24, 1893.)

    Injunction—Renewal op motion without leave.
    Where a motion to continue an injunction has been denied on the merits, a second application cannot be made before another judge without leave to renew, although made on amplified papers.
    Appeal by plaintiff from an order declining to grant a re-argument and denying a motion for an injunction.

      Hart & Price, for app’lt; Friend & House, for resp’t, Huber; Grossman & Vorhaus, for resp’t, Burns.
   McAdam, J.

The bill was filed by the plaintiff, as the literary-owner and proprietor of a manuscript play entitled “Waifs of New York,” to enjoin the defendants from producing or representing on any stage or in any theatre an alleged colorable imitation of said play under that title, on the ground that it was literary piracy, productive of irreparable injury. A temporary injunction was granted, and on the hearing of the motion to continue it the application was denied on the merits by Chief Judge Sedgwick. The plaintiff, without obtaining leave to renew, made a second application on amplified papers for substantially the same relief, and in this form it was denied by Judge Gilders'leeve, and the appeal now before us is from his order.

No legal ground for re-argument was made to appear, and Judge Gildersleeve could not be expected to reconsider questions which the Chief Judge had already decided adversely to the plaintiff. This "would be asking one judge to sit in review of the decision of another judge of the same court, and would in effect be to allow an appeal from one co-ordinate court to another, a practice neither encouraged nor sanctioned. In re National Trust Co., 31 Hun, 20; Mayer v. Apfel, 32 N. Y. Super. Ct., 729; Hallgarten v. Eckert, 1 Hun, 117; Worman v. Frankish, 32 St. Rep., 235 ; In re May, 49 L. T., N. S., 770.

Where parties apply for injunctions and like remedies, it is not too exacting to require, (1.) That the papers presented in the first instance conform to prescribed practice, and state all the grounds relied on for relief. (2.) After the application has been once fully argued, carefully considered and decided, on such papers, it must be considered finally adjudicated, subject only to the right of appeal. (3.) The same matter is not to be again considered without leave first had and obtained from the court which heard the original application. (4.) Motions for substantially the same relief are not to be split up and argued or decided upon the instalment plan, or they will become interminable as well as confusing. Orderly practice requires the enforcement of these rules. The second application was not brought within any rule which required the court to reconsider the matter on the merits, and we have failed to discover any reason why the disposition made below should be disturbed. The plaintiff was not entitled, as of right, to injunctive relief in advance of the trial, and there is nothing in the record showing any abuse of discretion in declining to grant the plaintiff’s application.

The order appealed from must be affirmed, with costs.

Fbeedmah, J., concurs.


text:
    Allan C. Dalzell, App’lt, v. The Fahy's Watch Case Co., Resp’t.

      (New York Superior Court, General Term,

      Filed October 24, 1893.)

    Discovery—Books akd papers.
    An application for a discovery of books and papers is one addressed to the discretion of the court, and where it appears that tlieir production may he enforced by a ¡subposna duces tecum in ample time for the purposes of the party making such application, a denial thereof is not an improper exercise of such discretion.
    Appeal from order denying plaintiff’s motion for discovery and inspection of defendant’s books.

      Wilber & Oldham, for app’lt; Wetmore& Jenner, for resp’t.
   McAdam, J.

The action is to recover $175,000 for failure to pay over to the plaintiff oue-lmlf of the net profits said to have been realized by the defendant from the manufacturo and sale of “crowns,” which is that part of the exterior of the watch case which is corrugated and turned in stem winding watches. The right and extent of the recovery claimed depend upon certain written agreements. Whether the action be denominated one in equity for an accounting, or at common law for the breach, the damages recoverable arc substantially the same, and the taking and stating of an account necessary to reach a proper result. The defendant, under its construction of the writings, is hound to pay •only for the crowns manufactured and sold by it to the trade .separated from watches of its own manufacture, while under -the construction contended for by the plaintiff, the defendant is liable as well for crowns manufactured by it and placed on all watches manufactured and sold by it,; that the -separation has nothing to -do with the question of liability. The defendant is willing to furnish an account of the crown heads sold .as such, and ¡not ■affixed to watches manufactured by it, but declines to allow .an inspection of its books showing the sales .of watches manufactured by it, which were sold at different prices without reference to the agreement under .which the plaintiff claims, .and the entries in respect to which contain no allusion to crown heads and no information whatever concerning them. If the action be regarded ■as one in equity the judgment will prescribe -the nature and extent of the liability incurred and the account to be furnished, and if it be regarded as one at .law the referee, after construing the writings, will in like manner determine the extent .of the inquiry. In either event, the plaintiff may .enforce the production of the defendant’s books by subpoena duces tecum in ample time for all his purposes, and when that -can be relied on with safety •there is no necessity for an inspection or discovery upon motion like the predent. Commercial Bank v. Dunham, 13 How. Pr., 541; Holtz v. Schmidt, 28 N. Y. Superior Ct., 28. Inspection or discovery is not matter of right, but a privilege granted in extreme cases, where the refusal may defeat justice or seriously imperil the establishment of a claim or defense. Harbison v. Von Volkenburgh, 5 Hun, 454. „The application was one addressed to the discretion of the court, Van Zandt v. Cobb, 12 How. Pr., 544; White v. Munroe, 33 Barb., 650; Hart v. R. R. Co., 52 St. Rep., 834; Ashley v. Whitney, 54 N. Y. Superior Ct., 540, and it appearing to have been properly exercised, the order appealed from must he affirmed, with costs.

Gtldersleeye, J., concurs.


author: Ehrlich, Ch. J.

text:
    John Doherty, Resp’t, v. Samuel Lord, Jr., et al., App’lts.

      (City Court cf New York, General Term,

      Filed October 20, 1893.)

    1. Jury—Bias.
    A juror drawn in an action to recover damages alleged to have been sustained through defendant’s negligence, who states that there would have to be strong evidence to induce him to find for a plaintiS in a negligence case, as he had had litigations of that kind as a defendant, is - not indifferent and is properly excused.

      2. Negligence—Evidence.
    Under a complaint alleging special damages in not being able to attend to business and including as a part of the damages sought the expenses to which plaintiff was put in endeavoring to be healed of his injuries, evidence respecting such matters is admissible.
    Appeal from judgment entered on verdict in favor of the plaintiff.

      Henry Tompkins and E. W. S. Johnston, for app’lts; W. T. B. Milliken, for resp’t.
   Ehrlich, Ch. J.

The complaint, with the inferences in its favor, sufficiently states a cause of action for negligently injuring tiie plaintiff, and one for which" the defendants are liable.

The case was tried on conflicting evidence, and the issues clearly submitted to the jury, and their finding, on the facts, being satisfactorily sustained, there is no reason to dispute the accuracy of the result arrived at.

The eleventh juror was not indifferent and was properly excused. He said there would have to be- strong evidence to induce him to find for a plaintiff in a negligence case, he had had litigations of that kind in which he had been defendant.

The plaintiff alleged special damage, in not being able to attend to his business for one month, and also claimed to recover his expenses in endeavoring to he healed of his injuries.

Under these allegations, the evidence respecting such matters was properly admissible.

The jury found that the injuries were the result of negligence on the part of the defendants and their servant, and that the plaintiff was free from fault.

We find no error in the rulings, and as the verdict is moderate in amount and justified by the facts, the judgment appealed from must be affirmed, with costs.

McCarthy, J., concurs.


author: McCarthy, J.

text:
    Johh Cartledge, Resp’t, v. Lizzie Crespo, otherwise known as Lizzie Olivella, App'lt.

      (City Court of New York, General Term,

      Filed October 20, 1893.)

    Lease—Condition precedent—Evidence.
    The defendant refused to sign a lease of certain premises which contained a provision requiring her to do all repairs, the house being then, out of repair, hut was induced to do so by plaintiff’s promise to put it in repair. The repairs not having been made defendant surrendered possession before the commencement of the term. In an action for rent under the lease, Reid, that parol "evidence to establish that the lease was not to become binding until such repairs were made was admissible, and that it was error to .exclude it and refuse to permit defendant to go to the jury on that issue.
    Appeal from judgment in favor of plaintiff, entered upon a verdict.

      Earley & Prendergast, for resp’t; Abram Kling, for app’lt.
   McCarthy, J.

This is an appeal from a judgment entered upon a verdict of a jury directed in favor of the plaintiff for two hundred and twenty-one 50-100 dollars upon a trial before court and a j ury.

The complaint set forth that on the 9th day of March, 1891, the plaintiff by a written lease rented to the defendant for the term of one year commencing on the 1st day of May, 1891, the premises known as No. 117 Bast 110th street in the city of New York, at the yearly rent of $600, payable in monthly payments in advance. ■

That the defendant lias not paid the rent of said premises for the months of May, June, July and August, amounting to $200, and for which judgment was demanded.

Fourth. The defendant alleges as a defense that she has not paid the rents as set forth in the complaint, and that on or about the 24th day of April, 1891, before the rent claimed in said complaint became due, defendant surrendered to the plaintiff in the complaint and plaintiff accepted the surrender thereof.

Fifth. The defendant for a further and separate defense set forth that at the time of the execution of said lease mentioned in the complaint, the plaintiff represented and agreed with the defendant, in consideration that said defendant would execute said lease mentioned in the complaint, that he would put said premises in good repair and condition and in a state fit for habitation to the satisfaction of the defendant herein, and it was agreed that in the event of said plaintiff failing to make said repairs mentioned in said complaint, that said lease should not operate and go into effect, and the defendant relying and believing said representations to be true signed and executed said lease.

Sixth. The defendant further alleges that said statements and representations, so made by the plaintiff, were false; that he neglected and did refuse to put said premises in a state fit for habitation, and which was the condition on which said lease was executed, whereupon the defendant refused to enter upon the enjoyment of said premises mentioned in the complaint.

Seventh. Upon the trial of the action the defendant was allowed the affirmative of the issue, who testified that she entered in the occupation of these premises in May, 1890, and that about the month of March, 1891, the agent of the plaintiff in this action asked her tp go to his office, and that at an interview had at the time between the agent and the defendant, he requested her to sign a lease, when she testified as follows:

“He showed me the lease, and my daughter was with me, and we both had it in our hands reading it, and it said I was to do all the repairs of the house; and when I seen that 1 said: ‘ Throw it down,’ and I threw it right down. I said ‘I wont sign that. I will not keep the house in repairs,’ so I was going out, and he called me back and said: Are you not going to sign the lease.’ I said, no, I would not keep the house in repairs, and he said: ‘1 promise you faithfully, 1 will put that bouse in repair for you, I will fix the ceiling,’ where it leaked, and the parlor window where I could not close it down, and one of those large bay windows, and the front door and the water-closet, and he agreed to do it, and I took his word and signed the lease, through that and no more. He said he would do this before my lease commenced.”

It is conceded that no repairs were made and that in the latter part of April, 1891, before the commencement of the term of the lease in question, that the defendant moved out.

The only question of merit on this appeal is the exclusion of parol evidence to establish the fact that the lease in question was not to become a binding contract until the performance of a condition precedent agreed upon between the plaintiff .and the defendant, and the refusal of the court to permit the defendant to go to the jury on the same.

The evidence shows that the defendant refused to sign the lease, containing the provision for repairs for the term beginning May, 1891.

It appears that at the time of making the lease the premises-were out of repairs in the particulars mentioned in the evidence, and this was the reason for such refusal.

That thereupon the plaintiff agreed to do the repairs spoken of before the commencement of the term of the lease in question, and upon that condition the plaintiff sighed the lease.

Ho such repairs being made, we are of the opinion that this was a condition precedent resting in parol and was admissible.

That it is not in the nature of the tradition, alteration or variance of the written agreement. See opinion of Bischoff, J., in Sire v. Rumbold, 14 N. Y. Supp., 926; 39 St. Rep., 85; and Corn v. Rosenthal, 20 N. Y. Supp., 632 ; 48 St. Rep., 674.

It brings the case within the rule now quite well established that parol evidence is admissible to show that a written paper which, in form, is a complete contract, of which there has been a manual tradition, was, nevertheless, not to become a binding contract until the performance of some condition precedent resting in parol. Reynolds v. Robinson et al., 110 N. Y., 654; 18 St. Rep., 235; Chapin v. Dobson, 78 N. Y., 81; Benton v. Martin 52 id., 574; Engelhorn v. Reitlinger, 122 id., 80; 33 St, Rep., 275.

- The case of Haynes v. Aldrich, 133 N. Y., 287; 45 St. Rep., 243, is not in point. There the defendant held over after the expiration of the original lease and thus became liable for the rent for the new term.

For these reasons the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Ehrlich, Ch. J., concurs.


text:
    Edward Bruno, Resp’t, v. Augustin Walsh, App’lt.

      (City Court of New York, General Term,

      Filed October 20, 1893.)

    Servicics—Charge.
    In an action for services as janitor and engineer of a building at an alleged agreed price of $80 a month, the answer was a general denial, and also alleged that plaintiff was employed for the month in question at $00, and that he failed and neglected to perform his duties as such and by reason thereof defendant was compelled to employ another person to perform such duties at an expense of $15, which he asked to set off against any recovery. The evidence as to whether plaintiff performed fiis duties was-conflicting. The court charged that plaintiff, under all the circumstances, was entitled to a verdict, the only question being as to the-amount. Held, error; that the question of performance of the contract should have been submitted to the jury, and that the court by the charge took the whole question from them.
    Appeal from judgment in favor of plaintiff, entered on verdict.

      Michael Scanlon, for app’lt; Hector M. Hitchings, for resp’t.
   McCarthy, J.

It is idle in our judgment for the defendant to argue as to the authority for the employment of the plaintiff.

The evidence is clear and sufficient that Dage, who first employed the plaintiff, was a member of the firm of 0. H. Yoking & Sol, and that this firm was the agent of the defendant in regard to the premises in question.

It was also clear that the employment was approved of by the defendant.

A more serious question arises in' regard to the correctness of the judge’s charge.

The complaint is to recover a balance of $145, for services as an engineer and janitor, in taking charge of defendant’s premises, Nos. 8 and 5 East Eighty-fourth street, this city, at the agreed price of eighty dollars per month. The same ending for the month of June, 1892. The answer of the defendant after denying the allegations of the complaint sets up among other defenses the, following:

For a further and separate defense to this action, the defendant alleges, upon information and belief, that on or about the 1st day of June, 1892, the said Yoking, as agent as aforesaid, further hired and employed said plaintiff as engineer and janitor for said houses for the month of June, 1892, at the agreed salary or wages of sixty dollars for said month of June, 1892, but that the said plaintiff failed and neglected to perform his duties as such engineer and janitor during said month of June, 1892.

For a further and separate defense to this action and by way of counterclaim, the defendant alleges that during said month of June, 1892, and by reason of the failure of said plaintiff to perform his duties as engineer and janitor as aforesaid, the said defendant was obliged to and did employ another person to perform said duties, and was obliged to and did pay such other person the sum of fifteen dollars and twelve cents therefor, which amount the services performed by such other person, were reasonably worth, and which last mentioned sum the defendant hereby counterclaims and sets off against any sum which the said plaintiff may recover in this action.

Wherefore the said defendants demands that the said complaint be dismissed with costs.

Thus by his general denial the defendant compelled the plaintiff to first prove his whole- case, and by these other defenses referred to had the right to go to the jury on the question of performance either of the contract alleged by the plaintiff or the contract alleged by the defendant.

The contract being by the month and payable at the end of the month was entire, and the plaintiff in order to recover was bound to show a full and faithful performance of his duties as janitor and engineer.

Such performance was disputed and considerable evidence was given on both sides in regard to the same.

At the close of the case the judge charged the jury as follows:

Gentlemen of the jury:

Under the rulings Í have already made in this case, there is but one question for you to determine, and that is, is the plaintiff entitled to forty-five dollars or is he entitled to eighty dollars. The defendant claims that for the month of June there was a special agreement whereby plaintiff was to receive but sixty dollars, that subsequently as some repairs and cleaning were to be done, plaintiff agreed that defendant might employ a man to do the work and deduct from the sixty dollars such sum as he paid out, and that pursuant to such agreement he paid out fifteen dollars.

If you believe the story of the defendant then your verdict will be for the plaintiff in the sum of forty-five dollars.

The plaintiff, however, claims that there was never any such agreement or understanding, and that while it was suggested to him that he should remain for sixty dollars, he at all times insisted he could only remain for the amount he had originally agreed upon, which was eighty dollars a month.

This is the plaintiff’s contention, and if you believe it is the true statement, then your verdict must be for the plaintiff in the sum of eighty dollars.

Under all circumstances, therefore, the plaintiff is entitled to a verdict; and the only question is as to the amount, and I repeat, if you believe the defendant your verdict will be for forty-five dollars, and if you believe the plaintiff’s story it will be for eighty dollars. Plaintiff excepits to the statement of the court that the defendant testified that plaintiff agreed he might employ a man to do the repairs. The court: I did not so understand his testimony. It was to do the cleaning. Exception. Defendant’s counsel excepts to that part of the charge wherein it states that the plaintiff is entitled to a verdict under all circumstances.

This exception is sufficient to raise the question as to the correctness of the charge.

We think that the trial justice should have submitted to the-jury the question of the performance or non-performance of the contract, and that in the use of the words excepted to he had taken the whole question from them. They were the judges of the facts.

For these reasons judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Ehrlich, Gh. J., concurs.


author: Ehrlich. Ch. J.

text:
    George W. Blood, Resp’t, v. George W. Smith et al., App’lts.

      (City Court of New York, General Term,

      Filed October 20, 1893.)

    ■Corporations—Transfers in contemplation of insolvency.
    The statutes of this state in reference to transfers by corporations In contemplation of insolvency have no application to foreign corporations.
    Appeal from an order made by the trial justice setting aside dismissal of complaint and ordering a new trial.

      H. P. Starbuck, for app’lt; Frederick Eder, for resp’t.
   Ehrlich. Ch. J.

The trial judge, after dismissing the complaint, entertained a motion for a new trial, which he granted on his minutes.

We think he erred in dismissing the complaint, and that he should have sent the cause to the jury as to the Iona fides of the sale under which the plaintiff claimed, and that the award of a new trial was proper.

The defendant has called attention to various provisions of the statutes of New York in reference to transfers by corporations in contemplation of insolvency, but the corporation which made the transfers in this instance was a foreign corporation, and the statutes cited have no application to it. See Worthington Co. v. Pfister Book Binding Co., 52 St. Rep., 448.

The laws of the foreign state were not offered in evidence, and we are unable to say what they provide in such a case.

At all events the facts should have gone to the jury, with proper instructions as to the law.

For tlie.se reasons the order awarding the new trial must be affirmed, with costs.

McCarthy, J., concurs.