author: Van Wyck, P. J.

text:
    Agnes C. Durand, Resp’t, v. Samuel I. Acken, App’lt.

      (New York City Court, General Term,

      Filed March 9, 1894.)

    Appeal—N onsuit.
    The denial of a motion for a nonsuit or dismissal of the complaint is proper, where the proof justifies the submission of the question of fact to the jury.
    Appeal by defendant from judgment on verdict of jury.

      Arthur H. My, for app’lt; Lamb, Osborne & Petty, for resp’t.
   Van Wyck, P. J.

The action was to recover damages . for personal injuries sustained by reason of defendant’s negligence in maintaining and omitting’to repair a defective stairway to a temporary bridge over an excavation under the sidewalk on Sixth avenue, this city, and which stairway was unprovided with any guard or hand railing. The appellant makes no complaint against the judge’s charge, but contends that it was error to deny his motions for nonsuit, and to dismiss after he had rested, because, first, the plaintiff did not show affirmatively the absence of negligence on the part of the defendant or his employees. Both of these contentions are unavailing, because the proof justified the submission of these two questions to the jury who found for' plaintiff, and such finding is not against the weight of evidence. The defendant by his answer, admits that he was erecting a new building on the west side of Sixth avenue, north of Twenty-fourth street, and that he had erected and maintained a temporary wooden bridge for the purpose of enabling persons traversing the sidewalk to pass over an excavation nnder the sidewalk, extending from the house line to the curbstone. It was while lawfully passing over this bridge that plaintiff fell and fractured her knee pan. Her testimony about the accident is, in part, that while she was going down the avenue, passing in front of the building which was being erected by defendant, she went up on the bridge all right, that she observed that the height of this bridge was about three or four feet above the level of the sidewalk; that the approach at the north end of the bridge was about four steps up ; that she walked up the bridge all right until she came to the south end, when she proceeded down two steps, then she fell headlong to the sidewalk, because there was no third step there; that she did not see it until she began to recover herself; that the first step at the south end of the bridge was all right and in proper condition and the second, then there was a space of one and a half to two feet where there was no step at all; that when she fell, she was very much stunned, and they picked her up and placed her under the awning next door to the new building, and when she recovered herself, she looked back and saw a man come out of this building with a jumper on, blue and white, and help one lady and two children across this bridge, and he had on a working hat, and was apparently one of the workingmen on this new building, and when she left he was there, that when she was walking off the bridge and down the southerly stairway, she was looking where she was going to step and at the step she was taking, but did not see the vacancy, and she was looking when she took the first step, and so too, when she took the second step, and she tried to look and see when she took the next step, but could not recover herself, and did not see the vacancy made by the missing step until she had fallen, but supposed it was all correct. Another eye-witness of the accident was cleaning the windows next door, and says he happened to be looking when this lady, plaintiff, came across the bridge, and that when she came across she went to step down supposing there was a step there and losing her footing she fell down, that there were four steps in the bridge, but there were not four steps on this occasion, for there were only three steps where there should have been four, and that a workingman came, after plaintiff fell, out of the building and helped a lady and a little girl and then he took a piece of scantling and nailed on the cleat on the third step and put a piece of board on it and this workingman seemed to be employed about the building, and had a jumper on. Although much of this evidence on behalf of plaintiff was contradicted by defendant, especially that which described the condition of the bridge and stairway still it justified the submission to the jury of the question whether plaintiff was free from or. guilty of contributory negligence. And as to the question of defendant’s negligence we have seen that he admitted by answer that it was he who was erecting the building and that he had erected and was maintaining this bridge and Dr. Tucker testified that he had, prior to the accident, passed the bridge going up Sixth avenue every day of his life and had noticed that the steps were very high but went over it but a few times; that the few times he went over it his attention was more particularly called to the step on the down town side ; that the way his attention was called to it was by the inconvenience that it gave him to get up and down,'because of this long step, and that he knew that it had been there a week, but could not tell how much longer than that. The defendant himself testified that he was at the building every day, two or three times a day, that he was on and over the bridge every day, that there was no railing down the steps, that he had five or six bricklayers and six or eight laborers working on and about this building, and that he also had there a foreman and a head laborer. If there was a step missing from the stairway leading down from the south end of the bridge it was proper to ask the jury whether it was not negligence for the defendant, his twelve or fourteen workmen and two foreman, all at and on the premises every day, to fail to discover and replace the missing step, especially when the doctor says it was there for, certainly, a week and that he refused to cross the bridge because of this long step on the down town sida This case was properly submitted to the jury and their verdict for plaintiff should not be disturbed.

Judgment and order affirmed with costs.

Newburger and McCarthy, concur.


source: Caselaw Access Project

license: Public Domain

text:
    Emily F. Wyckoff, Resp’t, v. James L. Curtis, App’lt.

      (New York City Court, General Term,

      Filed March 9, 1894.)

    1. Appeal—Direction op Verdict.
    Where the defendant requests the court to direct a verdict in his favor, hut makes no request to be allowed to go to the jury on any question, the judge becomes the trier of disputed questions of fact.
    3. Same—Amendment.
    When the appellate court may amend the complaint so as to conform the same to the proof and verdict.
    3. Payment—Mutual Mistake.
    Where the payment is made under mutual mistake, the payer cannot maintain an action for its return until the payee has been appraised of the mistake and a demand made upon him.
    4. Same—Fraud.
    In case of fraud, the right, to demand a return of the money may he exercised at any time within six years after actual knowledge of the facts upon which such right depends.

      Appeal by defendant from judgment on verdict directed by the court.

      K A. Turrell, for resp’t; M A. S. Man, for app’Iti
   Van Wyck, P. J.

The defendant obtained $970 from plaintiff, either under a mutual mistake or by fraud on defendant’s part. This mistake or wrong should be righted, and plaintiff’s judgment for that sum should, if possible, be sustained on this defendant’s appeal therefrom. At the close of the case defendant requested the court to direct a verdict in his favor, and made no request to be allowed to go to the jury on any question, hence the judge thus became the trier of disputed questions of fact with the same force and authority as the jury would have had if the same had been submitted to them, and if the verdict directed by the judge for plaintiff is justified by the proof, the judgment entered thereon should be affirmed, even though it becomes necessary to amend the complaint, on this hearing, so as to conform the same to the proof and verdict, and such amendment can be made here, because at no stage of the trial did defendant move to dismiss on the ground that plaintiff had failed to prove the cause of action alleged in the complaint, but his motion to dismiss was upon the ground that the statute of limitation prevails, and “ because no cause of action has been proven. The proof would justify the judge in finding that in the summer of 1886, July, August, it was represented to plaintiff that one Bailey was under contract to purchase a city lot from the defendant for one thousand dollars; that defendant sold and assigned the claim of his against Bailey to the plaintiff for $970, and at the same time delivered his, defendant’s, duly executed deed of conveyance of this lot to Bailey named as grantee therein, to plaintiff in escrow, to be by him delivered to Bailey, upon payment of the purchase price of $1,000; that thereafter in the summer of 1888, plaintiff made inquiry of Mr. Hutchins, to whom defendant referred him, as the lawyer for Bailey, as to whether Bailey had any existence at all, and that thereafter and after other diligent efforts in the same direction plaintiff reported to defendant such efforts and his inability to locate Bailey or ascertain his existence, and defendant said, “I have never seen Bailey. I have made some inquiries to find out who he was and where he was, but I do not know where he is because I could not locate him. I do not know whether such a man as this Bailey ever existed. I had this transaction with his lawyer; ” that thereupon plaintiff offered to return the Bailey escrow deed to defendant if he would deed the lot to plaintiff, and that defendant refused to do so and thereupon plaintiff demanded a return of the $970 from defendant, who promised to pay the same. In finding that Bailey was never in existence or that he was a fictitious grantee named in the escrow deed, the judge may have found either that the $970 was paid and received under a mutual mistake as to Bailey’s existence as a grantee, or that the money had been obtained by defendant by fraud by reason of bis then knowledge that Bailey as such grantee was a myth. The defendant’s contention is, that the return of the money should have been sought by action against him within six years from the summer of 1886, the time when he first obtained the same from plaintiff. The 380th section of the Code provides that actions must be commenced within certain periods “after the cause of action has accrued.” ¡Did plaintiff’s cause of action for the return of the money paid to and received by defendant under a mutual mistake, accrue until defendant had been informed of the mistake as to Bailey’s nonexistence as the named grantee in the escrow deed, and a return of the money demanded of him ? Judge Earle in Southwick v. First Nat. Bank, 84 N. Y. 430, says: “The obligation of a party to refund money voluntarily paid by mistake can arise only after notification of the mistake and a demand of payment,” and Judge Finch, in Sharkey v. Mansfield, 90 N. Y. 229, says: “Where the mistake is mutual, both parties are innocent and neither is wrong, the party honestly receiving the money through a common mistake owes no duty to return it until at least informed of the error, and he should have an opportunity to correct the mistake, innocently committed on both sides, before being subjected to the risks and expenses of a litigation.” If the payment was made under mutual mistake the plaintiff could not maintain an action for its return until defendant had been apprised of the mistake, and a demand made upon him for its return. But can § 410 of Code be invoked in aid of defendant’s contention that the six years’ limitation began running in his favor from the time in 1886 when he first received the money under such mistake? This sfiction provides that: “Where a right exists, but a demand is necessary to maintain an action, the time, within which the action must be commenced, must be computed from the time when the right to make the demand is complete.” The plaintiff’s right to demand a return of the money paid under mutual mistake was not complete in this case until both had mutually concluded that a mistake had been made as regards the identity or existence of Bailey as a grantee and the transaction as between plaintiff and defendant had been rescinded by plaintiff’s offer to return the deed held by him in escrow and by defendant’s promise to repay him the money, and all of this took place within the five years preceding the commencement of this action.

If the finding of fact was, that the defendant had originally obtained the money by fraud by reason of his then knowledge that Bailey was a fictitious grantee named in the deed delivered to plaintiff in escrow, then the defendant who then and now holds the legal title to this city lot would be deemed as then holding, and having since detained the lot as trustee for plaintiff, and equity would so decree; hence plaintiff had the right to demand a conveyance of the lot to himself and enforce this demand in equity against his trustee or upon refusal to so convey, to demand a return of the money from such trustee at any time within six years “ after he had actual knowledge of the facts upon which that right" depends,” and this light is vouchsafed to him under first subdivision of § 410 of Code, and he did not have actual knowledge of these facts until about five years before commencement of this action.

For the purpose of sustaining the verdict and judgment, the pleadings are amended by conforming the same to the facts proved, .and the j udgment is affirmed with costs.

FTewburger and McCarthy, J.J., concur.


author: McCarthy, J.

text:
    Emily Biskupski Resp't, v. Emil Pospisil, as President of the Jan Ziska Lozecislo 413, Independent Order of Odd Fellows, App’lt.

      (New York City Court, General Term,

      Filed March 9, 1894.)

    1. Appeal—Direction op Verdict.
    Where, at the final close of the case, the court, without motion by either party, takes the case from the jury and directs a verdict for the plaintiff, the evidence must be full, clear and sufficient to support such direction against the objections and exception of the defendant.
    2. Odd Fellows—Death Benefits.
    A widow cannot recover death benefits for her deceased husband, where he ceased to be a member of the order by his voluntary acts or expulsion.

      Langbein Brothers & Langbein, for app’lt; August P. Wagener, for resp’t.
   McCarthy, J.

This is an appeal from a judgment entered on the verdict of a jury by direction of the court in favor of the plaintiff, and from an order denying a motion for a new trial. The complaint was to recover the sum of $175 death benefit provided to be paid by the defendant, which was a lodge for such purposes on the death of plaintiff’s husband, who was a member of the lodge. The answer and defense was that some months previous to his death, the plaintiff’s husband was expelled. The defendant is a subordinate lodge of the Grand Lodge I. O. O. F. The constitution and by-laws of the Grand Lodge and its subordinates are in evidence. By Article IV., section 2, the grand lodge has one general form of constitution for the government of all subordinate lodges,which shall be considered as the laws by which each subordinate lodge is to be governed in the transaction of its business, and it has a right to make by-laws. Section 7 provides: “The benefits provided shall be depended upon, and recoverable only through the methods provided in the constitution, by-laws and rules of the order, to wit, trial in the lodge’s appeal to the lodge, to the district grand committee, to the grand lodge, and unless permission be refused by that body to the supreme lodge.” By Article VIII., trials, section 1, no member shall be put upon trial unless charges shall be submitted to the lodge in writing signed by a member of the order. By § 4 of this article, it is provided, “If the accused refuse or neglect to stand trial when duly summoned, the committee shall report, which report shall be conclusive and the punishment guilty of contempt of the lodge, shall be expulsion.” He may be represented by counsel, and tried as though present, if he so elects. By § 7 of this article it is provided, “Any member intending to appeal from the action of the lodge shall file with the secretary a notice of appeal, who shall forthwith send the notice, together with a certified copy of the charges, reports evidence and proceedings of the lodge relating to the case to the grand committee of the district.” By article 4 § 8, it is provided, “When a brother ceases to be a member of the lodge by reason of expulsion, his right, title, and interest in and to the property and funds of this Lodge or any part thereof, thereby becomes extinguished.” The by-laws of the defendant were put in evidence and portions of the same were translated in evidence. These provide as follows: “Every member is entitled incase of his sickness, by which he may be disabled from following his usual occupation to a sick benefit.” Members of whom it can be proven that they have received sick-benefit, claiming to be sick, and the fact being contrary, or otherwise using the funds of the lodge may be expelled. The plaintiff’s husband received benefit moneys, claiming to be sick. Charges were submitted to the lodge, signed by a member, he was notified, and put upon trial, he refused and neglected to attend, and for this contempt of the lodge he was expelled. The plaintiff’s husband then took an appeal from this action of the lodge to the district grand committee, which reversed the action of the lodge expelling him, and the lodge thereupon appealed from the decision of reversal to the grand lodge, which reversed the decision of the district grand committee, and sustained the action of the lodge, expelling plaintiff’s husband. The journal of the grand lodge and the report of the committee on appeals to the grand lodge and other records and evidence showing all these facts were admitted in evidence.

The plaintiff can only recover provided the husband at the time of his.death was a member of the defendant’s order in good standing and in accordance with its constitution and by-laws. If he was not such a member by his voluntary acts or expulsion, she cannot recover. It was obligatory on the plaintiff to prove that at the time of her husband’s death, he was such a member and there is no presumption to obviate this requirement, nor do I find in the case any affirmative evidence showing such fact.

It may be said however that at the close of plaintiff’s case, no motion to dismiss being made, that therefore, the presumption is, the plaintiff has made out a prima facia case. This is so generally, but where at the final close of the case, the court without motion by-either party, takes the case from the jury and directs a verdict for the plaintiff, the evidence must be full, clear and sufficient to support such direction, against the objections and exception of the defendant. While we do not agreee with the appellant’s counsel in many of his contentions on the the law and to the rules of evidence and the admission of documents, we think there was sufficient evidence of the fact, that charges were made against Anton Bisltupski and that notice to attend before the proper trial committee was given to him and of his failure to attend and consequent expulsion. His appeal to the district grand committee and their reversal of the decision of the lodge. Also of the appeal of the lodge to the grand lodge of the state of New York, its reversal of the decision just stated and the restoration of and affirmance of the original decision of the lodge of which Anton Biskupski was a member. (See pp. 12, 13, 15, 17, 21, 23, 26, 28, of case) which requires a submission of the case to the jury. He was subject to the constitution and by laws of this order and by the same as well as by his appeal, recognized and submitted himself to its judicial powers. The report agreed to and resolution adopted as appears at pp. 16, 17 of case, was an adjudication by the grand lodge and binding on -Anton Biskupski and therefore on the plaintiff, his wife, until disturbed by the still higher appellate tribunal as provided by the constitution and laws or set aside by the court for fraud or mistake. Therefore the learned justice erred in directing a verdict for the plaintiff. There was sufficient dispute which required it to be submitted to a jury. For this reason, the judgment should be reversed, and a new trial with costs to appellant to abide the event.

Yak Wyck, and Newburger, J.J.concur.


author: Newburger, J.

text:
    Mary Oakley et al., Resp’ts, v. Albert Loeming, App’lt.

      (New York City Court, General Term,

      Filed March 9, 1894.)

    Landlord and Tenant—Chapter 345 of 1860.
    Chapter 345 of 1860 does not apply to a case where it is the duty of a tenant to make the necessary repairs.
    Appeal from a judgment in favor of plaintiffs.

      A. J. Sire, for app’lts; Lamed, Warren and Knapp, for resp’ts.
   Newburger, J.

The complaint charged the defendant with the non-payment of Croton water rates on the premises. The answer admitted the lease, but alleged that before the rent claimed became due, the building became unsafe, dangerous and untenantable without any fault of the defendant, whereupon he abandoned the premises and surrendered possession thereof. At the trial, the defendant was allowed the affirmative of the issue, At the close of the defendant’s case, the trial justice directed a verdict for the plaintiff, from which direction and the judgment entered thereon, this appeal is taken. The direction of the trial justice was proper. The case of Tallman v. Murphy, 120 N. Y. 345; 31 St. Rep. 483, cited by appellant’s counsel is not applicable to the facts in this case. In that case the owner retained control over everything common to the whole building of which each tenant had the use or beneficial enjoyment and therefore the landlord was in duty bound to make all necessary repairs and remedy any defects that might appear in the building. No such duty was chargeable to the plaintiff herein. It was the duty of the defendant herein to have made the necessary repairs and the Laws of 1860 chapter 345 which he seeks to invoke does not apply to the section. The judgment must therefore be affirmed with costs.

Yak Wyck, P. J. and McCarthy, J., concur.


text:
    Frederick C. Leubusher, Resp’t, v. William H. Ruffhead, App’lt.

      (New York City Court, General Term,

      Filed March 9, 1894.)

    Bills and Notes—Usury.
    In an action against the last of several indorsers, usury depends upon the question whether the note had its inception before, or upon, its transfer to the plaintiff.
    Appeal from judgment and order sustaining demurrur.

      M. 0. Milnor, for app’lt; Lorenz Zeller, for resp’t.
   McCarthy, J.

Plaintiff demurs to the answer of the defendant on the ground that it is insufficient in law on the face thereof. The action is upon a promissory note and is against an endorser, the last of several endorsers. The answer shows that the note was made without consideration by the maker, and that no consideration existed for the various indorsements, and that it came to the hands of the defendant solely for the purpose of procuring the discounting of the note, and that prior to the transfer of the note to the plaintiff the note had no pre-existing vitality and no legal inception. It then sufficiently alleges that the transfer of the note by defendant to plaintiff was made in pursuance of a usurious agreement and was in violation of the statutes of the state. The issue of law thus raised was brought on for argument and the judge at special term rendered the following decision: “Demurrer sustained.” The plaintiff had a right to purchase note in suit at the lowest possible price that defendant was willing to take for it. The transaction was not usury, but merely a sale of the note. The justice at special term by the demurrer was called upon to determine whether or not the defense of usury was properly pleaded in the answer and not to determine the merits. By the demurrer the facts pleaded were conceded to be true. We think this plea of usury is sufficiently set forth. See National Bank of Auburn v. Lewis, 75 N. Y., pp 516, 519.

The question whether the note was void for usury depends upon the point whether it had its inception before it was transferred to defendant or plaintiff. In Eastman v. Shaw, 65 N. Y. 527, Dwight, J., says: “ The inquiry is not whether the note is accommodation paper, but it is the mere proposition whether an action could have been maintained upon it before transfer.” Again he says : “If no party to the note who is prior to the holder, could himself bring an action upon it against the maker, then no prior party ever owned the note, and the holder being the first owner, must be held to have loaned the money to the maker, through the prior parties who were only agents of the maker; on the other hand, if any prior party could have maintained the action, he 'owned the note and sold it to.the holder. The answer alleging that nothing was given or received by either the maker or endorser, and that prior to the transfer to plaintiff this note had no vitality or legal inception and thereupon alleging a corrupt and usurious agreement between the plaintiff and defendant was sufficient. The justice erred in sustaining plaintiff’s demurrer and awarding him j udgment. The j udgments and orders sustai n ing demurrer should therefore be reversed, with costs, to the appellant.

Van Wyck and Mewburger, J. J., concur.


text:
    The Homestead Bank, Resp’t, v. Robert A. Hollister, App’lt.

      (New York City Court, General Term,

      Filed March 9, 1894.)

    1. Appeal—Direction of Verdict.
    Where material evidence is presented by defendant and no evidence is offered to contradict or disprove it, and a motion to direct a verdict for plaintiff is granted, the appellant court will always allow, in favor of appellant, a liberal construction of the facts proven.
    8. Principal and Surety—Discharge.
    A surety is relieved from liability in case of the discharge of the principal by the act or with the consent of the creditor.
    3. Same—Relation.
    As between the maker and indorser of a note, their relation for most purposes is that of principal and surety.
    Appeal from a judgment in favor of plaintiff.

      John H. V. Arnold for app’lt; Charles F. MacLean for resp’t.
   McCarthy, J.

This is an appeal by the defendant from a judgment entered against him in favor of the plaintiff for $1,487.76. This action was brought to recover upon a promissory note made by defendant for $1,000 dated October 24, 1888, payable to his own order two months after date, at the Minth Avenue Bank, and endorsed and delivered by defendant to said bank. The plaintiff is the same bank, its name only having been changed. The answer admitted the making, endorsing and delivery of the note, but alleged as an affirmative defense that it was so made, endorsed and delivered at the request of the plaintiff, and without consideration, simply for the accomodation of one William J. Merritt, and as collateral security for the payment of a note of said Merritt for the same amount, payable at the same time, then held by plaintiff and that all these facts were well known to the plaintiff and its officers. That subsequent to the maturity of said Merritt’s note, and of the note sued upon, said Merritt satisfied and discharged his said note to the plaintiff, and thereby discharged the note sued upon. That the plaintiff, upon such payment by Merritt, forever released and discharged said Merritt from any and all further liability upon his said note of $1,000, as well as all other debts or causes of action, by a general release under its corporate hand and seal, thereby releasing and discharging this defendant from all liability on the note sued upon. At the trial, the court ruled that the defendant held the affimative of the case. The defendant substantially proved by himself and said Merritt the allegations of his answer, and the plaintiff offered no proof in answer thereto. At the close of the defendant’s case the plaintiff’s attorney moved that the court direct the jury to render a verdict in favor of the plaintiff for the full amount of the note sued upon with interest, upon the ground that, assuming that all the defendant’s testimony was true, and that it was Merritt’s note instead of the defendant’s which was discounted by the bank, still, that as the proceeds of the original discount were placed to the credit of the defendant and used by him, that the defendant was primarily liable, to the plaintiff for its re-payment and the court so ruled. The defendant’s counsel asked to go to the jury upon the question as to whether the true construction of the transaction between the parties was not that the defendant stood in the relation of surety to Merritt and that Merritt was the principal debtor to the plaintiff. This request of the defendant was denied, and duly excepted to, and a verdict directed in favor of the plaintiff against the defendant, which direction of the court was also duly objected to, aud these objections raise all the questions to be argued on this appeal. This action must stand or fall, on the note in suit (and no other) and the defenses that may be proved against it. The defenses set forth were good and if proven the plaintiff cannot recover. Where evidence is presented by defendant tending to prove his defense and no evidence is offered to contradict or disprove it, and a motion is thereupon made for a direction of a verdict for the plaintiff and granted, the court on appeal will always allow in favor of appellant, a liberal construction of the facts proven. The evidence in this case, then showed that on the original note for $1,500 and the renewals thereof for $1,000, Merritt was the maker and principal and this defendant, the endorser, and that the note in question was given to the plaintiff as an accommodation and as collateral security for the payment of a note made by Merritt and endorsed by defendant of even date. This last note of Merritt’s as well as the collateral came due and were not paid. It also appears thereafter the plaintiff in writing released and discharged Merritt from any and all obligations. This release is final and complete and released and discharged Merritt, the maker, from the payment of the note for which this note is suit was given as collateral, and if we are correct, that Merritt was the principal and this defendant the surety, such release and discharge would fully and complete absolve this defendant from any liability and this judgment must be reversed. We think the evidence supports this conclusion. It is a very familiar rule that a surety is relieved from liability in case of the discharge of the principal by the act or with the consent of the creditor. As between the maker and endorser of a note, their relation for most purposes is that of principal and surety. The contract of the endorser is distinct from that of the maker, and the former cannot require the holder to prosecute the maker as principal debtor, but the relation of maker and endorser is that of principal and surety as regards the familiar rule, that if a creditor, by agreement with the principal debtor without the concurrence of the surety, saw the terms of the contract, the surety is discharged. If the holder without the privity or consent of the endorser, by valid contract with the maker, extend the time of payment, the endorser is thereby discharged. So in case the holder discharges the maker, the endorser is also discharged. If the maker of a note pays, the endorser is discharged from his contract, in the same manner as is a surety by principal’s paying. Indeed nothing is better settled that this, that payment of a note by the maker or by either of the prior parties liable thereon, discharges the obligation of a subsequent endorser, and the release or discharge of the maker by the holder effects the same result. Farmer's Bank of Amsterdam v. Blair, 44 Barb. 641. See also Brown v. Williams, 4 Wend. 367-368 ; Newcomb v. Rayner, 21 Wend. 108. Merritt remained the ultimate debtor, the person who ought to pay the debt or note in preference to and in «exoneration of all the other parties to the paper, both in discharge of the obligation to the holder, and in exoneration of the endorser. See the Madison Square Bank v. Pierce, 51 St. Rep., 176-177. In the rights of the plaintiff which were valuable and material it was the privilege of the surety to succeed by way of subrogation, whenever, he, the surety, should pay the debt and the plaintiff could not deprive him of it, or impair and destroy it except at the peril of releasing him from the liability. The condition of the compromise was the release of the debtor and the plaintiff cannot take the compromise and avoid the condition. He has by his acts, discharged the defendant entirely. If .there was any disputed question of fact, that ought to have been submitted to the jury. From a •careful examination, we think the j ustice erred in directing a verdict and for these reasons the judgment should be reversed and a new trial ordered with costs to the appellant to abide the event

Van Wyck, J., concurs.


text:
    David Boyd as Administer, etc., App’lt, v. Robert Boyd, Resp’t.

      (New York City Court, General Term,

      Filed March 9, 1894.)

    W itness—Impeachment.
    Until a proper foundation is laid, a witness cannot be impeached by-proofs of contradictory declarations made out of court before or after the trial.
    Appeal from a judgment in favor of the defendant, and from a motion denying a motion for a new trial.

      Johnston & Johnston, for app’lt; Kohn, Ruck & Lepjpman, for resp’t.
   Newburger, J.

This is an appeal from a judgment in favor of the defendant and against the plaintiff, and from an order denying a motion for a new trial. This action is brought upon a judgment recovered by the above-named intestate against the defendant in the marine court of this city on the 4th day of April, 1874. The answer in substance pleads payment and the •case was submitted to the jury on that issue. The appellant insists that the trial judge erred in the exclusion of certain testimony as follows: An examination of defendant taken in proceedings supplementary to execution in the Hnited States court for the southern district of Hew York, which examination disclosed that between the years 1879 and 1883 defendant was-insolvent. The trial justice promptly excluded this testimony. It has been repeatedly held, McCulloch v. Dobson, 133 N. Y. 124, 44 St. Rep. 89 ; Fitch v. Kennard, 46 St. Rep. 271, that a witness-cannot be impeached by proofs of declarations made out of court before or after the trial, contradictory of his testimony until a proper foundation is laid for the impeachment by interrogating the witness himself in regard to that statement. Mo such foundation was laid in this case, and attempt was made to examine the witness as to the testimony excluded. The other exceptions in case do not warrant us in disturbing the judgment.

Judgment affirmed with costs.

Van Wyck, P. J., and McCarthy, J., concur.


text:
    The Owl Cigar Company, Resp’t, v. Thomas Ledgerwood, App’lt.

      (New York City Court, General Term,

      Filed March 9, 1894.)

    Attachment—Vacation.
    An attachment will not he vacated, where the affidavit, on which it was-granted, makes out a prima facie case, unless defendant’s affidavits require its vacation.
    Appeal from an order denying a motion to vacate a warrant of attachment.

      S. A. Emanuel, for app’lt; Campbell & Murphy, for resp’t.
   Newburger, J.

This is an appeal from an order denying a motion made by defendant to vacate a warrant of attachment. The attachment was granted on the ground that the defendant being an adult and a resident of the city of Mew York keeps himself concealed therein with the intent to avoid service of summons, and that, after proper and diligent effort to ascertain the place of sojourn of the defendant, same cannot be ascertained. It is conceded that the defendant knew he was insolvent, and that he was not to be found either at his store or at his home. The affidavit on which the attachment was granted made out a prima facie case, and the affidavits on the part of the defendant do not show such a state of affairs as would warrant us in vacating the attachment.

The order appealed from must be affirmed with costs.

Van Wyck, P. J., and McCarthy, J., concur.


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    Joseph H. Tooker et al., App’lts, v. Marion Booth, Resp’t.

      (New York City Court, General Term,

      Filed March 9, 1894.)

    Judgment—Vacation.
    A motion to open a default will be denied where several'years have elapsed since the entry of judgment and the explanation for the delay is not satisfactory.
    Appeal from an order opening a judgment taken by default.

      Michael J. Scanlan for app’lt; Langbein Bros. & Langbein for resp’t.
   Newburger, J.

This action was commenced on the 15th day of December, 1886, by the service of the summons on the defendant. On the 16th day of December 1886, defendant appeared by attorney. On the 12th day of October 1887, the complaint was served on the defendant’s attorney, and on the 12th day of December 1887, judgment was entered herein by default and that execution was issued upon said judgment and returned February 11th, 1888. In December 1893, proceedings were instituted by plaintiff for the examination of a third party in supplementary proceedings, it appearing that there is in the hands of such third party, property sufficient to satisfy the judgment herein. After the institution of these proceedings defendant moved to open the default, vacate the judgment herein and for leave to defend which motion was granted and from the order entered thereon this appeal is taken. We think the motion should have been denied. More than six years had elapsed since the entry of the judgment. The explanation sought to given by the defendant for the delay is not satisfactory. It is apparent that the defendant’s application is not prompted by a desire to defend but rather from the fact that she is about to collect a legacy left her and thus the plaintiff ’s claim is now collectable. The defendant’s application was not made with that diligence that the law requires, Wygant v. Brown, 27 St., Rep. 4; Drummond v. Matthews, 42 St., Rep. 117, and should have been denied. For these reasons the order appealed from should be reversed and the motion to open default denied with costs.

Van Wyck, and McCarthy, J. J., concur.


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    Alice Cairnes, Resp’t, v. Emanuel Walter, Appl’t.

      (New York City Court, General Term,

      Filed March 9, 1894.)

    Pleadings—Demurrer.
    In determining the correctness of a decision overruling a demurrer interposed to the complaint on the ground that it fails to state facts sufficient to constitute a cause of action, the whole complaint must he considered.
    Appeal from an order overruling a demurrer to the complaint.

      Marcus Newburg for appl’t, L. B. Beclcley for resp’t.
   McCarthy, J.

The appellant demurs to plaintiff’s complaint on the ground that it fails to state facts sufficient to constitute a cause of action. This was overruled. In determining the correctness of this ruling and the sufficiency of this pleading, the whole complaint must be considered. This is not an action for damages by reason of any breach of a covenant in the lease but for damages by reason of a breach of the agreement which induced the making of the lease, to wit.—That the defendant knowing the promises were untenantable, and uninhabitable would put the same in proper condition, that believing and relying on such representations and promise, the plaintiff was induced to and did make, accept and enter into and under such lease and paid and continued to pay rent until July, relying on the promises of the defendant to do as he agreed to do. The consideration for such work was the making of the lease, see Cartledge v. Crespo, 5 Misc. Rep. 349-351; 55 St. Rep. 161; Reynolds v. Robinson 110 N. Y. 654; 18 St. Rep. 235. We think the complaint while not drawn in the most artistic manner, yet, when taken as a whole, fairly states a cause of action and that the demurrer was properly overruled. The defendant in our opinion has misunderstood the cause of action set forth in the complaint. The order overruling demurrer should be affirmed with leave however to the defendant to answer within ten days on payment of the costs of appeal.

Yak Wyck and Hewburger, JJ, concur.


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    Edward W. Fox, Resp’t, v. Solomon Brooks et al, App’lts.

      (New York City Court, General Term,

      Filed March 9, 1894.)

    Tbial—Motion to compel acceptance oe pleading.
    In an action on a joint liability, where but one defendant is served, the plaintiff is bound to accept an answer and notice of trial served for andón behalf of the other defendant. ",
    Appeal from an order denying a motion to compel plaintiff to accept the answer and notice of trial served for and behalf of a defendant, who had not been served with the summons and complaint in the action.

      Otto Irving Wise, for app’lts; Henry Zeiher, for resp’t.
   McCarthy, J.

This action was brought against “ Solomon Brooks and Brooks, first name unknown,” to recover the sum of $161.56 with interest, for goods, sold and delivered. The summons in this case is issued against “Solomon Brooks and

Brooks, first name being unknown.” The summons and complaint herein were served on the defendant Solomon Brooks on the 23rd of January 1894. On the next day, January 24th, 1894, a notice of appearance for both defendants was served on the attorney for the plaintiff. On Friday, January 26th, the answer of Aaron Brooks, one of the defendants, together with the defendant’s notice of trial „was served on the plaintiffs attorney as is shown by the affidavit of service. Thereafter and on Monday, January 29th, the answer and notice of trial were both returned with the following endorsement: Otto Irving Wise, Esq., Sir:—The within is hereby returned on the ground that the person Aaron Brooks, named as defendant, has not been served in this action, and no personal claim is made against him. Dated Hew York, Jan. 29th, 1894. Henry Zeiher, plffs. atty. On the -same day an order to show cause was obtained returnable the next morning why the answer and notice of trial thus returned should not'be received by the plaintiff’s attorney. The motion was argued and denied with the following memorandum: '“This motion must be denied, no personal claim is made against the answering defendant and infancy is no defense as to the co-partner ship property. The only question here is, was the plaintiff bound to accept the answer and notice of trial served for and in behalf of the defendant Aaron Brooks, although he had not been served with the summons and complaint The action was on a joint liability and the notice of appearance was served and adopted for both defendants. This then was a voluntary appearance by the defendant Aaron Brooks and equivalent to a personal service on him and waived by the same any irregularity, see § 424 Code of Civil Proc. In Higgins v. Freeman, 2 Duer, 652, Bosworth. J. says:—“ I think the plaintiff is wrong in the position that a person named as a defendant and against whom a personal judgment is prayed, has no right to appear and answer until he has been served with a summons. The Code declares the voluntary appearance of a defendant equivalent to a personal service of the summons on time (Code § 189). This assumes that he has a right to appear. It subjects him to the same liabilities as if personally served with process, and it would be a strange construction of this part of the Code that should hold, he did not thereupon acquire all the rights of a party actually served.” § 424 Code of Civil Proc. which is entirely the latter part of § 189 of Code of Proc. See also opinion of Ingraham J. in Wellington v. Classon, 18 How. 10, 11; Wheelock v. Lee, 74 N. Y. 498, and Martine v. Lowenstein, 68 N. Y. 456, 458. The justice at special term therefore erred in his conclusions and the order appealed from should be and the same hereby is reversed with costs to the appellant and the motion to compel the plaintiff to accept the answer and notice of trial should be granted with $10.00 costs to the appellant.

VAN Wyok, P.J. and Hewbitrg-er, J. concur.


author: Fitzsimons, J.

text:
    Bernard S. McKean, App’lt, v. Charles H. Adams, Resp’t.

      (New York City Court, General Term,

      Filed February 8, 1894.)

    Appeal—Case.
    The settlement of a case on appeal will he set aside, where it was induced hy deception and suppression of the truth on the part of the appellant’s attorney.
    Appeal from an order vacating and setting aside the settlement of a case on respondent’s motion.

      F. Q. Bullard, for app’lt, (F. F. Bullard, of counsel); Booream, Hamilton & Beckett, ( William H. Hamilton and Henry M. Ward, of counsel) for resp’t.
   Fitzsimons, J.

Evidently the trial justice made the order appealed from because he believed that he was induced to settle the case on appeal by deception and suppression of the truth on the part of the appellant’s attorney. Under such circumstances, it was not alone his right but his duty to make such an order, so that no injustice might be done respondent because of an incorrect and false record by the appellate court. The order is affirmed with costs and disbursements.

Van Wyok, P. J., concurs.


author: Pratt, J.

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    Charles L. Rowland, Resp’t, v. Thomas F. Rowland App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)
    Reference—Compulsory.
    A reference may be granted if the examination of a long account is involved.
    Appeal from an order referring the action for hearing and determination on the ground that it involved the examination of a long account.

      Lockwood & Hill {L. A. Lockwood, of counsel), for app’lt; Lyon, & Smith, for resp’t.
   Pratt, J.

The complaint states a good cause of action at law, and erroneously prays judgment for an accounting. The answer states that plaintiff was never a partner in defendant’s business, but was an employe upon a salary, the amount of which was to be determined by the profits of the business. The answer is thus consistent with the allegations of the complaint. Both the complaint and answer show a proper case for a reference. The defenses of payment and release will not, in the ordinary course, be put in evidence until the plaintiff has established his cause of action, to do which he requires a trial before a referee.

Order affirmed, with $10 costs to abide the event.

All concur.


author: Dykman J.

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    In the Matter of the Brooklyn Elevated Railroad Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Elevated Railway—Injunction.
    The operation of an elevated railway will not be enjoined so long as condemnation proceedings are pending.
    Appeal from an order denying a motion for a stay of certain equitable actions.

      Hoadly, Lauterbach & Johnson, ’ (Wm. H. Cohen and Wm. H. Rand, Jr., of counsel) for app’lt; Stephen M. Hoye, (Francis Russell Whitney, of counsel) for resp’t
   Dykman J.

This proceeding was instituted for the acquisi- • tion of the right of way for the railroad along Myrtle avenue in the city of Brooklyn, and, after its commencement, several of the parties thereto brought suit in equity to restrain .the operation of the road in front of their premises. Thereupon the petitioner made a motion at the special term of the court to stay all proceedings in such actions until the termination of the condemnation proceedings. That motion was denied, and the petitioner has appealed from the order.

The petitioner has the legal capacity to invoke the exercise of the right of eminent domain, and, after the payment of the compensation awarded, it has the power to continue the operation of the road. If there be any delay in the proceedings the landowner may conduct the same to a conclusion as well as the petitioner. Code Civ. Proc. § 3379. In the celebrated Story Case, 90 N. Y. 122, the court of appeals determined that the injunction should not issue until the railroad company had a reasonable time to acquire the property of the plaintiff by agreement or proceedings for the condemnation of the same. A proceeding under the right of eminent domain, to ascertain the compensation for private property taken for a public purpose, is a simple and satisfactory method, and there is no reason why this petitioner should be embarrassed by suits which can have no beneficial result. The property owner can receive compensation but once, and no court will restrain the operation of this road so long as the condemnation proceedings are pending. Our conclusion is that the order should be reversed, with $10 costs and disbursements, and the motion should be granted, with $10 costs.

Pratt, J., concurs; Cullen, J., dissents.


author: Dykman, J.

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    Thomas W. Case, Resp’t, v. New York Central & Hudson River Railroad Company, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    1. Negligence—Railboad Company.
    Negligence cannot be predicated on the omission of the company to station a flagman or maintain gates and lights at a highway crossing, in the absence of any statute imposing such duty.
    2. Same—Cattle Guaeds.
    § 32, chap. 565 of 1892, does not include injuries to a horse driven by the owner on the track on a dark night while traveling along a highway.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Herbert K Kinney and Ashbel Green, for app’lt; A. S. Tompkins, for resp’t.
   Dykman, J.

Upon the trial of this action the counsel for the defendant requested the court to charge the jury that the defendant owed no duty to station a flagman, or maintain gates or a light, at the highway crossing, and negligence cannot be predicated of the omission; and in reply to that request the court said: “ I will leave that to the jury.” The defendant excepted. Plaintiff’s Counsel: “I ask the court to charge the jury that they may find negligence from the absence of a light or gate or flagman, or some warning.” The court: “I have submitted that question as a matter of fact to the jury. If the jury say that the circumstances—the manner in which this road crosses the railroad, and the position of the railroad soutli of the crossing—are such that they would be liable to mislead people in the ordinary use of the highway, so that they would be likely to stray upon the railroad track, then it is for the jury to say whether or not it was negligence not to have either a cattle guard there, or some person to warn people to keep them from straying into this dangerous place.” Defendant excepts. The refusal to charge as requested, and the charge as made, were both erroneous. It was thus left to the jury to determine that the company was under obligation to maintain a flagman, gate, light or cattle guard at the crossing in question, and that the failure to do so was negligence. Such a rule has been condemned in many cases. “ The duty of posting flagmen, or having servants and agents, or placing gates or other obstructions, or of giving special or personal notice to travelers at railroad crossings, can only be imposed by the legislature. Courts and juries cannot, whatever may be thought by them of the convenience or necessity of such or other like precautions at particular crossings, hold the company to provide them under the penalty of being charged with negligence from the omission.” Weber v. N. Y. C. & H. R. Railroad Co., 58 N. Y. 451-459. “Whether there is negligence depends upon the degree of care required and given in each particular case, irrespective of any particular mode. Whether the care was by a flagman, gates, or by any other equivalent mode, is of no importance. If it were established as law that the omission of any particular act which, from the amount of travel at crossings, a jury might think required by the public safety, was negligence, a railroad company would never know when it was safe from that imputation; nor, no matter how carefully it observed the requirements of the statute, or conducted itself in other respects, if it omitted any one act which the caprice, sympathy or prejudice of the jury might think required for the public safety, the omission would constitute negligence, and subject it to all the consequences." Beisiegelv. N. Y. C. Railroad Co., 40 N. Y. 9-26. “The defendants had no flagman at the crossing in question, and the plaintiffs claim that this was negligence in the defendants; while, on the other hand, the defendants requested the court to charge that the defendants were under no legal obligations to station a flagman or signalman at the cross: ing in question. ■ This was refused, and to the refusal, and to various parts of the charge on this subject, the defendants excepted. * * * I apprehend that railroad companies do not run their trains under the pressure of any such rule or law, and that the means which it is their legal duty to employ to prevent third persons from sustaining injury are not dependant upon any such broad discretion legally intrusted to a jury.” Grippen v. N. Y. C. & H. R. Railroad Co., 40 N. Y. 34-41. “ Under such a charge, the jury might find a flagman was a proper precaution, or gates, or that a man should run in front of the cars, or anything else which commended itself to the judgment of the jury. Such has been held not to be the measure of liability of the corporation in the situation of .the defendant.” Cumming v. Railroad Co., 104 N. Y. 669-671, 672 ; 5 St. Rep. 737. “ A railroad company is not bound, and owes no duty, so to station a flagman, and negligence cannot be predicated of the omission. * * * The final charge in this case left to the jury whether the company was, or was not, bound to have a flagman at the crossing, and whether the defendant should have had one there, and so permitted the jury to predicated negligence upon the admission. * * * For this error we think there should be a new trial.” Houghkirk v. Canal Co., 92 N. Y. 219-227, 228. These lengthy quotations are made because they manifest so clearly the error assigned by the defendant upon this appeal.

In relation to the cattle guards, the error is equally apparent The statute (2 Laws 1892, p. 2068, § 32) which requires their construction declares the penalty for a failure to comply with its requirements, and the damages which the plaintiff seeks in this action are not included in such consequences. Knight v. N. Y., L. E. & W. Railroad Co., 99 N. Y. 25. The judgment and order denying the motion for a new trial on the minutes of the court should be reversed, and a new trial granted, with costs to abide the event.


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    John Caufield, as Executor, etc., Resp’t v. W. B. Davenport, as Administrator, etc., Appl’t.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)
    Gift—Question of fact.
    Where the mortgage is delivered, the question whether the donor intended to give the bond also, is one of fact.
    Appeal from a judgment in favor of the plaintiff.

      Charles II. Otis, for app’lt; Ullo, Ruebsamen & Cochran (Lorenzo TJllo, of counsel), for resp’t.
   Dykman, J.

The defendant is the public administrator of the county of Kings, and as such became possessed of certain bonds and mortgages, which he claims as a portion of the personal property of John Caufield, deceased. The plaintiff is the executor of Bridget Caufield, the widow of John Caufield, and he claims the bonds and mortgages as the property of his testatrix by virtue of a gift causa mortis from John Caufield. This action was brought for the recovery of such bonds and mortgages. A trial was had before a judge without a jury, and he found the evidence sufficient to sustain the gift of one of the bonds and mortgages, known as the Calhoun Mortgage,” and insufficient to sustain a gift of the others. Judgment has been entered upon such decision, from which the defendant has appealed, but the plaintiff has not appealed.

The sole question, therefore, involved upon appeal, has reference to the ownership of the Calhoun bond and mortgage only. We find the evidence sufficient to sustain the findings of the trial judge, and the rules of law which control the case have been so frequently stated, and are so thoroughly settled, that a restatement of them would be unprofitable, if not stale. This point is made, however, by the appellant: Assuming the evidence sufficient to show a compliance with all other requisites to a donatio causa mortis, there was no evidence of a delivery of the Calhoun bond, and, without such evidence, proof of the delivery of the mortgage is insufficient. That argument is based upon the theory that the bond is the principal, and the mortgage is the incident, of the debt it was intended to secure. The case of Merritt v. Bartholick, 36 N. Y. 44, is referred to as an authority, and it does recognize the principle as a general proposition; but, after saying that the principal shall not pass by the grant of the incident, the court says: “ unless we are authorized to say that such was the intent of the parties, we cannot hold that it did, [that is, thát the transfer of the mortgage did operate as a transfer of the bond also.] This is a question of fact.” Under that authority, therefore, whether the donee intended to give the bond as well as the mortgage to the plaintiffs intestate is a question of fact, and it was so treated by the trial judge. Upon that subject he found that John Caufield, in recognition of the equitable right of his wife, in view of impending death delivered to her, as a gift thereof and of the money secured thereby, the bond described as having been made by Annie E. Calhoun to John Caufield to secure the payment of the principal sum of $9,000, together with the mortgage therein also described, bearing the same date and executed by the same person, for the same sum, with the same conditions as the said bond. As a conclusion of law the trial judge found that the delivery of the Calhoun bond and mortgage, as aforesaid, by the said John Caufield to the said Bridget Caufield, and the acceptance thereof by her, as aforesaid, constituted a valid gift thereof for the purposes declared by the said John Caufield. The finding of fact of the trial judge is amply sustained by the evidence, and so his conclusion of law is justified also. Our conclusion is that the judgment should be affirmed, with costs payable from the estate in the hands of the defendant.

All concur.


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    John A. Cross, App’lt, v. Long Island Loan & Trust Company et al., Resp'ts.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Will—Construction.
    The increase in the value of securities held in trust goes to the remainder-men.
    Appeal from a judgment in favor of defendants.

      Martin J. Keogh, for app’lt; William M. Ingraham and Albert Q. McDonald, for resp’t; Charles W. Coleman, guardian ad litem for John A. Barnard and others.
   Dykman, J.

This is an appeal from a judgment entered upon the findings of a judge after a trial at the special term. The action was brought to obtain a construction of the will of John A. Cross, deceased, and the question involved is whether the sum of $29,500, the sum received by the trust company for premiums on the sale of certain securities belonging to the estate of the testator, constitutes a profit,” within the meaning of the word as it is employed by the testator, and therefore belongs to the life tenants, or whether it forms part of the corpus of the estate, and belongs to the remainder-men. The fund in question represents the increase in the value of the securities, and is therefore not “profit,” in the ordinary acceptation of that term. It is an accretion or increase from natural causes. Profit is acquisition of gain above expenditures arising from some transaction or operation. Under this will there was to be no traffic or operations, but only an investment of the fund. A decision of the surrogate of New York that an enhancement of the value of United States bonds held in trust went to the remainder-man, and not to the life tenant, was approved by the court of appeals in Re Gerry, 103 N. Y., 445 ; 3 St. Rep., 688 ; and that case seems also to be decisive of this. In re Clark, 62 Hun, 275; 42 St. Rep., 300; Bergen v. Valentine, 63 How., 225, and Duclos v. Benner, 62 Hun, 428; 42 St. Rep., 929 —are all authorities to the same effect.

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


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    John R. Drake, App’lt, v. New York Iron Mine, Impleaded, etc., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Attorney and Client—Disclosure oe Occupation and Address.
    The power of the court to compel plaintiff’s attorney to disclose his client’s occupation and address will never be exercised for any remote purpose.
    Appeal from an order granting a motion to require plaintiff’s ■attorney to give defendant the address and occupation of plaintiff.

      Roger M. Sherman, for app’lt; Frank M Smith, for resp’t.
   Dykman, J.

This is an appeal from an order requiring the plaintiff’s attorney to furnish the attorney for the defendant a sworn statement showing the occupation and residence of the plaintiff. There is doubtless sufficient power lodged in the court to make such or any order when it becomes necessary for the due ■and orderly progress of the action in which it is made; yet it is ■entirely obvious that such power will never be exercised for any remote purpose. Courts make only such orders and permit such proceedings in actions as are relevant and essential to the legitimate conduct thereof. Ulterior designs of litigants cannot be fostered by the courts. This defendant has been offered all he can require for the purposes of this action, and the papers before us disclose an ulterior design in procuring this order. The attorney for the plaintiff made a distinct offer, in writing to the attorney for the defendant, to furnish him with the address and •occupation of the plaintiff if it was desired for any purpose connected with the impending suit, and, as that offer was not accepted, there can be but one inference drawn from such failure to accept. We do not think the power of the court has been wisely exerted, and the order should be reversed, with $10 costs and disbursements.

All concur.


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    Robert G. Eccles, Resp’t, v. William Radam, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    1. Evidence—Libel.
    Publication of other libelous matter, after the commencement of the action, is inadmissible.

      3. Tbial—General Objections.
    A general objection to evidence is sufficient, where an objection, if properly made, cannot be obviated.

      Stephen Van Wyclc (Edward C. James, of counsel), for app’lt; Townsend, Dyett & Einstein (B. F. Einstein, of counsel), for resp't.
   Dykman, J.

This is on appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury, and from an order denying a motion for a new trial, upon the minutes of the court. The action is for libel, and the verdict was for $6,000. The plaintiff is a physician and medical writer, residing in the city of Brooklyn. The defendant is the discoverer of a certain remedy called “Radam’s Microbe Killer,” and resides in the city of New York. In the month of September, 1889, the plaintiff published an article in which he reflected with severity upon the defendant and his remedy. That article was republished in the St. Paul Herald, and was followed by another article by the plaintiff in the same paper. Both of these articles contained fierce and acrimonious language, and were plainly libelous. The defendant wrote an answer to the article, which was published in the St. Paul Herald, and that article constitutes the basis of this action. The answer admits the authorship and publication of the article, and claims that it was without malice, and for the protection of himself and his remedy. Upon the trial the plaintiff produced a circular issued by the Rad am Microbe Killer Company subsequent to the article upon which this action is founded, and since the commencement of this action, and a portion of the same was offered and read in evidence. The counsel for the defendant objected to the evidence, “ as immaterial, and having nothing to do with this case.” The objection was overruled, and there was an exception. This evidence was entirely inadmissible. Neither the repetition of the libel nor the publication of other libelous matter after the commencement of the action is admissible for any purpose. Frazier v. McCloskey, 60 N. Y. 337 ; Cassidy v. Brooklyn Daily Eagle, 138 N. Y. 239 ; 52 St. Rep. 336. While that is substantially admitted, it is stated by the respondent that the objection to the testimony failed to state the proper ground for its rejection, and the exception is therefor unavailable. General objections to testimony, without the assignment of an ground or reason therefor, will be insufficient, and unavailable, except where the objection, if properly made, could not have been obviated.

Pausing here for a moment, it is to be said that this case falls within the exception stated. The pamphlet from which the plaintiff read, according to the testimony of the plaintiff, was published or circulated by the Radam Microbe Killer Company, through a lady in its office, after this action was begun. The objection, therefore, could not have been obviated. But the objection was not general; it specified the ground as immaterial, and having nothing to do with this case. It already appeared that the circular was not published by the defendant, and that its publication was subsequent to the commencement of this action, and that was sufficient to show that it had nothing to do with this case. It might be material in another suit, based upon it, which could be commenced, and therefore it was inadmissible to enhance the damages in this case. The case of Daly v. Byrne, 77 N. Y. 182, is not an authority for the respondent. In that case the objection was considered by the court as general, but it was more like a proposition than an objection. It cannot be said that the testimony did not injure the defendant, for, without it, the size of the verdict is entirely inexplicable. The judgment and order should be reversed, and a new trial granted, with costs to abide the event.


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    Mary Fay Fleming et al., Plaintiffs, v. Phoenix Assurance Company of London, Defendant.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Insurance—Arbitration.
    Art appraisement, under the arbitration clause in a policy of fire insurance, is conclusive and binding upon both parties.
    Motion for a new trial on exceptions ordered to be heard at general term in the first instance.

      Jay & Gaudier (Flamen B. Candler, of counsel), for pl’ffs; Egerton L. Winthrop Jr. guardian ad litem for infant pl’ffs; Martin & Smith {Geo. A. Strong, of counsel), for def’t.
   Dykman, J.

This is an action upon a policy of fire insurance, to recover for damages by fire to the property insured. The cause was tried at-the circuit, where a verdict was directed in favor of the plaintiff for $45.76, and the exceptions were directed to be heard at the general term in the first instance. The policy is the usual standard fire policy, and contains this provision;

“In the event of disagreement as to the amount of loss, the same shall, as above provided, be ascertained by two competent and disinterested appraisers, the insured and this company each selecting one, and the two so chosen shall first select a competent and disinterested umpire. The appraisers, together, shall then estimate and appraise the loss, stating separately sound value and damage, and, failing to agree, shall submit their differences to the umpire; and the award in writing of any two shall determine the amount of such loss. The parties thereto shall pay the appraiser respectively selected by them, and shall bear equally the expenses of the appraisal and umpire.”

Under that provision, appraisers were appointed, who appraised the damage at $40.

It seems to be the theory of the plaintiffs that an action may be maintained upon the policy independent of the award of the appraisers ; that the appraisement may be ignored, and the whole question opened and litigated as if no valuation of the loss had been made. It must be observed that although some attack is made upon the appraisers, and their mode of procedure, yet it is not sought to avoid their award. We think the appraisal was conclusive and binding upon both parties. After the provision for an umpire if the two appraisers chosen by the parties fail to agree, it is stated that “the award in writing of any two shall determine the amount of such loss.” Although an umpire was selected in this case to be called in if the two appraisers failed to agree, yet they did not so fail, and his services were not required. The award was made in writing, and signed by the two appraisers. That was much more than an idle ceremony. It was a judicious method compromising a controversy in a cheap and expeditious manner. There can be no advantage derived by the selection of the appraisers, for each party chooses one, and, if it' becomes necessary, they, and not the parties, select the umpire. The method insures the selection of men competent and qualified for the service, and it must be borne in mind that they are appraisers, and not arbitrators. Their function is to “estimate and appraise the loss” by personal examination and observation. They have no power or authority to take testimony, and their doing so is not contemplated. While we think the case will stand firmly upon the award, and the defendant has a legal right to its protection, we are also satisfied that in this particular case the award was ample for the loss sustained. The claim has a very suspicious aspect. Even the friend of the plaintiffs, who seems to have been a very fair and just man, could discover but small traces of fire upon the buildings. The husband of one of the plaintiffs testified that the appraisers said they could see no damage. The exceptions should be overruled, and judgment should be entered upon the verdict.

All concur.


text:
    The People ex rel. Thomas J. Lynch, App’lt, v. Henry I. Hayden, as Police Commissioner, etc., Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed February 12, 1894.)

    Municipal Corporations—Officers—Police.
    The'appellate tribunals will not interfere with the decisions of the police commissioners in dismissing policemen, except in plain cases of erroneous determination.
    Writ of certiorari to review the proceedings of the police commissioner in dismissing the relator from the office of patrolman in the city of Brooklyn.

      Sidney Willidms, for relator; F. A. McCloslcey, for resp’t.
   Dykman, J.

This case comes here upon a writ of certiorari to obtain a review of the proceedings of the defendant, as police commissioner of the city of Brooklyn, in dismissing the relator from the office of patrolman in that city. The specific charge against the relator was intoxication, and two witnesses testified to the fact, and he himself admitted that he had taken three or four drinks during the day. The decision of the commissioner is sustained by the decision of the court of appeals in the case of People ex rel. Masterson v. French, 110 N. Y., 496; 18 St. Rep., 231, which was a case much like this ; and the law of that case was not modified by the subsequent case of People ex rel. Hogan v. French, 30 St. Rep., 67. A wide range of power and discretion is vested in the commissioner in this class of cases, and his decisions depend so much upon the facts in each, case that appellate tribunals will not interfere except in plain cases of erroneous determinations. This is not such a case, and the proceedings should be affirmed, without costs.

All concur.


author: Martin, J.

text:
    Mary Burns, as Administratrix, etc., Resp’t, v. Jacob Pethcal, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed February 15, 1894.)

    Master and Servant— Co-servant.
    A servant is not liable for injuries to a co-servant caused by nonfeasance, but only for such as are caused by misfeasance.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes of the court.

      Edmund O' Connor, for appl’t; S. Mach Smith, for resp’t.
   Martin, J.

This action was to recover damages for negligently causing the death of William Burns, the plaintiff’s husband and intestate. In June, 1892, Edward A.Matthews was engaged in building a sewer in the city of Binghamton, under a contract between himself and the city. The sewer commenced at Leroy street running from thence northerly to within a short distance of Main street, and was something over 1,000 feet in length. Leroy street and Seminary avenue run parallel with Main. Murray street, through which the sewer was being constructed, runs at right angles with Main. The sewer was 27 feet deep at Leroy street, and as it proceeded northerly, towards Main, was of less depth; so that, at the point where the accident occurred, it was to be only about 16 feet deep. The accident occurred on the 24th of June, 1892. At that time, the sewer, up to a manhole which was about 6 feet south of where the accident occurred was about 16 feet deep. It had also been opened and partially excavated for a distance of from 25 to 50 feet north of the manhole, running from a depth of 8 or 10 feet, on a gradual ascent, to the surface of the ground at the northern extremity of the opening. On the day before the accident, Dorsey and Stone, two laborers, in Matthew’s employ, who were engaged in excavating at the point where the accident occurred, were directed by the defendant, who was in the employ of Matthews as his foreman, to stop work at that point, as a depth had been reached when it was proper to curb the opening. Curbing was usually put in at the depth ot eight or nine feet, as plank eight feet in length were, used for that purpose. Dorsey and Stone ceased work at that point, and went to work further north. Two other employes, Horton and Husted had been selected by the contractor to do whatever curbing was necessary on the sewer; and the defendant, immediately after direct-ting Dorsey and Stone to dig no deeper at that point, instructed them to curb the excavation at the place of the accident. As it rained in the afternoon, the men left the work, and did not return until the following morning. The rain commenced about an hour or an hour and one-half after the defendant had directed the men not to dig any deeper at that place. The plaintiff’s intestate had worked for Matthews on another sewer that was being constructed in the city; had been engaged for four or five years previous to his death in working on the streets of various cities; and the evidence tended to show that he was a man above the average intelgence of such laborers, and for that reason had been previously elected by an inspector of the city to do work in excavating that was especially difficult. He commenced work on the Murray street sewer for the first time the morning of the accident. The defendant was there before seven o’clock, went down into the sewer at the place where the accident occurred, examining the bank, and discovered nothing to indicate any danger or weakness in it. Another labore'r, who had worked at that point the day before, went into the sewer that morning at the same point to clean out the mud, and saw nothing to indicate danger or weakness in the walls of the ditch. After examining the sewer, and at about seven o’clock, the defendant set the men to work, taking a portion of them south,and telling the rest to go forward, without directing any person to work at any particular place. The defendant went south, and, after placing his men there, again directed Horton and Husted to put in the curbing at the place of the accident, to which they replied that they would go right along. The defendant then took his book and began taking the men’s time. The plaintiff’s intestate went north of the manhole, to the point where he was injured, without any direction from the defendant, or any other person, to work at that point; and there was sufficient room for him to work where the sewer was of less depth, and where he would not have been exposed to any danger. He had worked about 20 minutes when the west bank of the sewer caved in, and injured him so that he died the same day. The defendant had no knowledge at the time that Burns or any of the men were at work in the sewer at the point where this accident occurred. The eastern bank of the sewer stood firm and upright after the accident. Experts who were thoroughly acquainted with this kind of excavation testified that the east and west banks were, to .all appearances, alike; that nothing could be discovered that would disclose any reason why the caving of the west bank occurred; that it was regarded as entirely safe, in that kind of soil, to excavate to the depth of from 8 to 10 feet without curbing, and frequently excavations were made in such soil to the depth of 14 feet without curbing. The soil for a distance of 50 feet south was apparently the same as at the place of the accident and the men employed upon the work had been engaged in excavating there for two weeks without any evidence of weakness manifesting itself in either of the banks of the sewer, when of the depth of 8 or 10 feet. It was the duty and custom of Horton and Husted, who were employed to curb the sewer, to do so whenever any of the men requested it. The excavation was about 5 feet wide at the top, and narrower at the bottom. The soil at the place of the accident was, at the top, lightish gravel, coarse and hard; then followed a sort of loam or gravel; beneath that, a lightish sand; then gravel again. The stratum of sand was something over a foot in depth. The earth had been thrown out on the west bank, except a little sand that had been thrown out on the east. The plaintiffs evidence tended to show that the season had been a rainy one. This was contradicted. There was but little conflict in the evidence given on trial.

At the close of the plaintiff’s testimony, the defendant moved for a nonsuit, which was denied. At the conclusion of the evidence, the defendant again moved for a nonsuit, which was denied. To both of such rulings the defendant excepted. He then asked the court to direct the jury to render a verdict in favor of the defendant. This request was also denied, and the defendant excepted. The court submitted to the jury the question whether the defendant was negligent in not notifying Burns not to go to work at the particular point where he received his injuries, and in not warning him of the danger of working there. The defendant excepted to this portion of the charge. Ho question is raised on this appeal as to any of the rulings of the trial court in the admission or rejection of evidence. Hor is it claimed by the appellant that the damages aré excessive, if the plaintiff was entitled to recover in this action. The broad question presented for determination on ■ this appeal is whether the defendant was liable for the injury which resulted in the death of the plaintiff’s intestate. The only theory upon which the plaintiff sought to recover in the court below, or upon which she now seeks to sustain the recovery had, is that the defendant was guilty of negligence which caused the injury resulting in the death of her intestate. The only negligence charged by the plaintiff, or submitted to the jury by the court, as a basis for a recovery, was the omission of the defendant to direct the decedent not to go to work at the particular point where he received his injury, or in not warning him of the danger of working there. After a careful study of the evidence in this case, we find it quite difficult to discover any actionable negligence upon the part of the defendant in this respect. The evidence shows quite conclusively that the bank where this slide occurred was apparently firm, and that there was nothing to evince any weakness or imperfection in it, and that the defendant ■and other witnesses who had examined it before the injury, and afterwards, were unable to discover any indication of such weakness or danger. Moreover, the defendant had given no directions to the decedent to go to this particular place to work. It was a place he selected for himself, and that, too, while there were other places where the sewer was of a less depth, and where he might as well have worked, if he had chosen. Under this evidence, can it be said that it was sufficient „to justify the submission to the jury of the question of the defendant’s negligence? Or, if sufficient, was there any evidence showing that the plaintiff’s intestate was free from contributory negligence? If the danger of this accident could have been discovered by the defendant, by the exercise of reasonable care, why not by the decedent, if he exercised the same degree of care ? Is it probable from the evidence that the defendant, by reason of his experience, or for any other reason, could have discovered it, when the decedent could not? Can it be that the defendant was negligent in not discovering the-danger, and, at the same time, that the plaintiff has borne the-burden of showing that her intestate was free from contributory negligence when he did not discover it, or, if he did, remained at work there after such discovery? We do not, however, deem it necessary to determine either of these questions, as there is another ground upon which we think the judgment must be reversed.

As to the relation existing between the plaintiff’s intestate and the defendant, there can be no doubt. That they were both employes and servants of Mr. Matthews, the contractor, is established,, and not denied. Hence, the question is presented whether this-action could be maintained by the plaintiff to recover for the death of her intestate against the defendant, who was a co-employe. This question was raised by the defendant’s motion for a non-suit made at the close of the plaintiff’s evidence, and renewed after all the evidence in the case had been received. One of the grounds of the-motion was that there was no such relation existing between two-co-employes as authorized one to bring an action against the other on the ground of negligence. The English authorities on the question of the liability to third persons of a servant or agent for an act or omission performed or omitted by him while engaged in the business of his master are to the effect that the servant is liable for misfeasance, though the.act be in obedience to his master’s order, but that for mere non-feasance or omission of duty he is not liable to-third persons, but only to the master, who alone is answerable to-third persons for the servant’s neglect. Smith, Mast. & Serv. 415, and cases cited. We think it may be safely said that the English rule prevails generally in this and other states, notwithstanding the broad declarations of some judges and text writers to the effect that a servant is liable to third persons injured by his negligence, either alone or jointly with his master. Murray v. Usher, 117 N. Y. 543; 27 St. Rep. 928 ; Blackstock v. N. Y. & E. Railroad Co., 20 N. Y. 48, 50; Fort v. Whipple, 11 Hun, 586; Denny v. Manhattan Co., 2 Denio, 115, affirmed, 5 Denio, 639; Carey v. Rochereau, 16 Fed. 87 ; Delaney v. Rochereau, 34 La.Ann.1123; Reid v. Humber, 49 Ga.207; Henshaw v. Noble, 7 Ohio St. 226,231; Colvin v. Holbrook, 2 N.Y.126; Montgomery Co. Bank v. Albany City Bank,7 N.Y.459; Feltus v. Swan, 62 Miss. 415; Stephens v. Bacon, 7 N. J. Law, 1; Labadie v. Hawley,, 61 Tex. 177 ; Paper Co. v. Dean, 123 Mass. 267; Bell v. Josselyn, 3 Gray, 309, 311. The conflict in the authorities upon the question is more apparent than real. It has arisen, to a great extent, from a failure to observe clearly the distinction between misfeasance and nonfeasance, and from an omission to point out the fact that, while a servant is liable in the one case, Be is notin the other. Disregarding this distinction, some judges and authors have stated, in general terms, that a servant is liable for his own negligence to a person injured thereby. Sucfy a statement is inaccurate and misleading. Nonfeasance is the omission of an act which a person ought to do. Misfeasance is the improper doing of an act which a person might lawfully do. If the duty omitted by the agent or servant devolved upon him purely from his agency or employment, his omission is only of a duty he owes his principal or master, and the master alone is liable; while if the duty rested upon him independent of his agency or employment, then he is liable. That such is the doctrine in this state, and that, when applied to the case before us, it requires us to hold that this action cannot be maintained, is rendered quite manifest, we think, by an examination of the case of Murray v. Usher, supra. In that case an action was brought by the plaintiff, as administrator, to recover damages for alleged negligence causing the death of his intestate. The intestate was employed by the defendants Usher & Watkins as a day laborer in their sawmill. While so employed, a platform, upon which he was, fell, and he received injuries causing his death. The defendant Lewis was their superintendent, having general charge of the business under their supervision, they giving directions from time to time. Lewis was instructed to look after the necessary repairs, and it was his duty to inspect the platform from time to time so as to see it was kept in a safe condition. The plaintiff’s evidence tended to show that he negligently omitted to perform this duty. In delivering the opinion in that case, Judge Andrew said:

“The judgment could not be maintained against the defendant Lewis if the case presented an exception raising the question that his neglect to perform the duty imposed on by his employers to inspect and repair the platform from time to time, so as to keep it in a safe condition, did not render him liable for injury resulting to third persons from such neglect. Lewis and the plaintiff’s intestate were coservants of the owners of the mill; the former having the general charge and superintendence of the business under the supervision of the owners, who themselves gave directions from time to time. They instructed Lewis to look after the necessary repairs, and the evidence justified the inference that, in respect to the platform, he omitted to perform his duty. The general rule of respondeat superior charged the master with liability for the servant’s negligence in the master’s business causing injury to third persons. They may, in general, treat the acts of the servant as the acts of the master. But the agent or servant is himself liable, as well as the master, where the act producing the injury, although committed in the master’s business, is a direct trespass by the servant upon the person or property of another, or where he directs the tortious act. In such cases the fact that he is acting for another does not shield him from responsibility. The distinction is between misfeasance and nonfeasance. For the former, the servant is, in general, liable; for the latter, not. The servant, as between himself and his master, is bound to serve him "with fidelity, and to perform the duties committed to him. An omission to perform them may subject third persons to harm, and the master to damages. But the breach of the contract of service is a matter between the master and servant alone, and. the nonfeasance of the servant, causing injury to third persons, is not, in general, at least, a ground for a civil action against the servant in their favor. Lane v. Cotton, 12 Mod. 488 ; Perkins v. Smith, 1 Wils. 328; Bennett v. Bayes 5 Hurl. & N. 391; Smith, Mast. & Serv. 216, and cases cited.” ’

The Murray Case, in all its essential particulars, so closely resembles the case at bar as to make the doctrine of that case clearly applicable, and decisive of the question under consideration. We are of the opinion that, as the defendant in this action was charged only with nonfeasance, and not with misfeasance, and as the evidence disclosed that the defendant was guilty only of an omission of duty which devolved upon him, if at all, purely from his employment, and not in his individual character, he was not under the principle of the authorities cited, liable for the injury to the plaintiff’s intestate, and the court erred in refusing to grant the defendant’s motion for a nonsuit. Judgment and order reversed, and a new trial granted, with costs to abide the event.

All concur.