author: Pratt, J.

text:
    James Stott, Resp't, v. The New York, Lake Erie & Western Railroad Co., App'lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

      1. Negligence—Railroad crossing.
    Plaintiff drove up to a railroad crossing as a milk train was passing, and waited for it to go by, sitting facing the track. As he attempted to proceed his cart was struck by a train which was running rapidly on the other track, and he was injured. It appeared from the testimony that the bell was not rung until the train was within 100 feet of the crossing. Reid, that there was sufficient evidence to authorize the jury to infer that plaintiff took the usual precautions.
    2. ¡Iamb—Evidence—Photograph.
    A photograph of the scene of the accident is admissible, although the situation had been changed before it was taken.
    (Dykman, J., dissents.)

      Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial on the minutes.
    Action for personal injuries sustained at the Main street crossing of defendant’s road, in Goshen, 1ST. Y.
    Plaintiff was riding with one Parshall, and as they came to defendant’s crossing found a milk train passing. They waited for it to pass, sitting facing the track. After it had gone by, the flagman folded his flag, put it under his arm, and moved away. They then started to cross, when a train came rapidly on the other track, the horse wheeled onto that track, and the cart was struck by the engine, and plaintiff was injured.

      Lewis M Carr, for app’lt;

      W. F. O’Neil, for resp’t.
   Pratt, J.

Appellants urge that the proof fails to show that plaintiff stopped and looked and listened before attempting to cross defendant’s track.

The trial judge charged the jury that unless he took those precautions he could not recover; and the verdict shows that the j urv believed those precautions were taken. The appeal book is not certified to contain the whole evidence, and as no motion for non-suit was made at the close of plaintiff’s case we may presume the defendant’s counsel were then of opinion the plaintiff had established his right to go to the jury.

Moreover, from the testimony, as it appears, the jury may well have inferred these precautions were taken. It is shown that when plaintiff approached the track a milk train passed, and during the passage the plaintiff sat in the wagon facing the track. As he was not deaf nor dumb nor asleep, the jury may have presumed that his senses were in use. Counsel suggest that as other witnesses testify they saw and heard the coming train, the plaintiff would likewise have seen and heard had his senses been alert.

But the flagman places the train at a distance of ninety feet when he saw it, and the witness who testifies to the bell says the train was 100 feet from the crossing when the bell rung. That distance is passed by a rapid train in two or three seconds, and the warning was then too late to be useful.

Apparently the horse saw the train before the flagman, for he turned and galloped fifty feet down the track before overtaken by the train.

The appellant also objects that plaintiff was permitted to put in evidence a photograph of the crossing, by which the jury were enabled to learn that since the accident the defendant had erected gates.

We are not able to see that this objection is well taken. To show the jury the place where an inspection would aid them is a familiar practice. We are not aware it has ever been held that if one party to a litigation has changed the situation the other must lose the right to show the premises to a jury. A photograph is an easier way to accomplish the same result.

We find no valid ground of exception, and the judgment must be affirmed, with costs.

Culler, J., concurs; Dykmar, J., dissents.


source: Caselaw Access Project

author: Pratt, J. Dykman, J.

license: Public Domain

text:
    Annie J. Parshall, Adm'rx, Resp't, v. The New York, Lake Erie & Western Railroad Co., App'lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.
    Action to recover for the death of plaintiff’s intestate at the Main street crossing of defendant’s road, in the village of Goshen, N. Y. The facts are the same as in the case of Stott v. N. Y., L. E. & W. R. R. Co., decided herewith.

      Lewis K Carr, for app'lt;

      W. F. O'Neil, for resp’t.
   Pratt, J.

The case of Stott v. this defendant, decided this term, arose upon the same state of facts, and the same disposition must be made in this case as in that.

Judgment affirmed, with costs.

Cullen, J., concurs.

Dykman, J.

(dissenting.)—This is an appeal from a judgment entered upon a verdict in favor of the plaintiff and from an order denying a motion for a new trial upon the minutes of the court.

The action is for the recovery of damages resulting from the death of the plaintiff’s intestate, who was her husband, caused, as the plaintiff charges, by the negligence of the defendant.

The cause was tried at the Orange county circuit in November, 1891, and a verdict was rendered in favor of the plaintiff for five thousand dollars.

On the evening of the 17th day of July, 1890, Henry Clay Parshall, the plaintiff’s intestate, and James Stott rode in a cart drawn bv one horse, which was driven by Parshall, from La Grange to Goshen, in Orange county. The points of the compass cannot be ascertained from the case with precision, but they seem to have been coming from the west or southwest, for when they came near the east bound track, as it is termed in the case, which is the track of the railroad upon which the cars run towards New York, they were stopped by the flagman, who was standing on the west bound track to flag a milk train which was then moving towards New York on the east bound track.

The testimony of Stott, who was in the cart with the deceased and who was examined as a witness for the plaintiff, tended to show that as they came up Main street towards the railroad the flagman at the crossing flagged them to stop, and they did so on the right side of the road as the milk train was coming along, and that after the milk train had passed the flagman flagged them to come on, which they did, and when they reached the track the flagman endeavored to stop them, but could not succeed, and the cart was struck by a west bound train, the men were both thrown out, Parshall was killed and Stott was injured.

The flagman, who was a witness for the defendant, denied the material part of that testimony, and denied that he had a flag, or that he gave them any signal to go on, but, on the contrary, he testified that he had a lantern which he waved as a signal for them to stop.

This unfortunate occurrence was witnessed by many persons who were disinterested, and had no connection with the railroad company, and five of them were examined, and gave testimony* in behalf of the defendant upon the trial.

All these witnesses testified that the flagman had a lantern,1 which he waved towards the two men, and that he called out to them for the purpose of arresting their attention when they were in Main street coming towards the train.

There is no complaint of failure to give the usual signals to indicate the approach of the train, and the flagman was at his post, and discharged his duty, and stopped the men until the milk train had gone past. Then they moved forward, and unless they did so by the direction or invitation of the flagman, there is no ground for a recovery in this action, and the trial judge so charged in these decided and unmistakable terms: “ Unless the proof satisfies you that the guard there invited the people to pass, and in pursuance of that invitation they did iyiss so far as they were permitted, until they were struck by this train coming from Rew York, and going toward the west, unless you so find, there is no case of negligence whatever, and you will find for the defendant.1'

While we must assume that the fact was found which enabled the jury to make a verdict for the plaintiff under this charge, we must yet examine the testimony, and determine whether there was evidence to support such finding.

On his direct examination, the witness Stott said the flagman flagged them to stop, and they did stop about fifty feet from the crossing, and that the flagman then flagged them to come along when the milk had gone past.

On his cross-examination, he was asked what motion the flagman made when he motioned them to come on, and he said he folded up his flag, and put it under his arm, and walked down the track behind the milk train out of sight behind a car, and they construed that as an invitation to come on.

He further said it was less than a minute before the flagman reappeared, and then they were on the east-bound track. Then he said the flagman shouted to them, but afterwards he said he could not be sure he shouted to them at all or made any motion towards them.

In opposition to this, the flagman swore he had no flag at that time, and five witnesses corroborate him and say they heard the shouting of the flagman and saw him have a lantern.

This last testimony is the most natural. It was about eight o'clock in the evening, and the flagman says it was dark. That was the time to use a lantern and not a flag, as the former could be seen when it was waved and a flag could not be seen.

If the flagman had no flag at that time the testimony of Stott fails entirely, for it was the folding of the flag which he says was construed into an invitation to go forward.

It is inconceivable that the flagman would fold his flag and walk away when the milk train was passing out on the east-bound track, and another train was coming in whose approach he had detected and which would be as dangerous to the two men as the other, and leave them unnoticed to encounter the peril, when down to that time he had been so active and faithful in the discharge of ' his duty.

The testimony of Stott is to be taken with much caution in view of his interest alone, but when it is contradicted by the probabilities and circumstances, the reasonable and natural inferences and the testimony of five disinterested witnesses, it is entitled to no consideration.

We think, therefore, there was no evidence to support the verdict.

This view renders it unnecessary to notice the absence of proof of care on the part of the deceased and Stott, but if they advanced, as he says they did, after the milk train had gone past, they did so after the flagman had become aware of the approach of the west-bound train that caused the calamity, and we find no evidence to show that they either of them looked or listened for the approach of another train.

It is unnecessary also to examine the other questions raised by the appellant.

The judgment and order denying the motion for a new trial should be reversed and a new trial granted, with costs to abide the event.

Judgment affirmed, with costs.


author: Barnard, P. J.

text:
    William N. Dickinson, Resp't, v. James H. Hart, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    1. Contract—Breach.
    ° Defendant, who was a jeweler, agreed to furnish plaintiff with a show case and shelving to conduct a stationery business in defendant’s store for five years; but after two years moved out and leased the store to two persons, for a dyeing establishment and a second-hand clothing store, with a partition in the middle. Held, a breach of the contract.
    2. Same—Damages.
    The payment for the privilege to be made by plaintiff was to be determined by his sales. Held, that the case was one where the loss of profits was the proper measure of damages.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.
    Action for alleged breach of contract.

      James & Thomas H. Troy, tor app’lt;

      Chas. J. Patterson, for resp’t.
   Barnard, P. J.

At the time of the execution of the agreement between the parties the defendant was a jeweler at 313 and 315 Fulton street, Brooklyn. His lease expired the 1st of May, 1892. The agreement to furnish the plaintiff with a show case and shelving to conduct a stationery business in the defendant’s store was absolute and required the furnishing of the same in that store and under the then existing condition until the end of the privilege, which was from April 6, 1887, to May 1, 1892. The two businesses manifestly fitted each other and it was a breach of the agreement for the defendant to lease out the store to two people, one part for a dyeing establishment and the other part for a second-hand clothing store with a partition in the middle of the same or nearly so. The businesses were incongruous with that of plaintiff’s and the store size was reduced. Evidence given to establish that the substituted businesses were not fitted to the plaintiff’s, was immaterial and did no harm. Ho evidence was needed. The payment to be made by the plaintiff for the privilege was to be determined by the sales of the business. It was to be five per cent of gross sales made by plaintiff up to May 1, 1888, and ten per cent of such gross sales from May 1, 1888, to May 1. 1892.

It was made an issue whether the plaintiff consented to the termination of the privilege, but the jury have found against the defense as not being the fact. The only remaining question is as to the rule of damages in case of a breach by the defendant. Proof was given as to the gross sales for the two years of the existence of the unbroken contract, and the amount paid defendant for rent, five per cent was $333.07, and the second year ten per cent was $584. The gross sales for the two years was $12,500, and after paying the rent and the clerk hire, the profits of the two years was $5,993. The sales of the second year were larger; nearly double the second year than the first. The plaintiff was entitled to recover the value of his loss. The case is one where the loss of profits is the proper measure of damage. Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y., 205; White v. Miller, 71 id., 118; Schile v. Brokhahus, 80 id., 614.

There was evidence sufficient to sustain the finding of the jury of a loss, excluding any charge for plaintiff’s services for a much larger sum.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


author: Barnard, P. J. Pratt, J.

text:
    Mary S. Martin et al., Ex'rs, Resp'ts, v. George Hillen, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    1. Conversion—Husband and wire.
    Evidence sufficient to require the submission to the jury of the question of ownership of bonds in action for their conversion by the husband of decedent.
    2. Same—Evidence.
    In such an action reciprocal wills made by the husband and wife many years previous, and which did not refer to the bonds, are not admissible.
    3. Same.
    Testimony of the husband that he did not know that his wife had any property except a monthly payment, and as to whether she was handling money of his, is inadmissible under § 829 of the Code.
    Appeal from judgment in favor of plaintiffs, entered on verdict, and from order denying motion for a new trial.

      Charles J. Patterson and E. L. Bushe, for app’lt;

      James & Thomas H. Troy, for resp’ts.
   Barnard, P. J.

The issue between the 'parties was one of fact and was one which was irreconcilable. The plaintiffs are executors of their deceased mother. She was the wife of the defendant. The plaintiffs aver that their mother left certain bonds, being four bonds in the New York Elevated Bailroad Company, of $1,000 each, and three bonds for $1,000 each in the Metropolitan Elevated Bailroad Company. That the defendant converted the bonds to his own use. The defendant answers that the bonds were his property. Each party gave evidence tending to support their side of the issue and the jury has found for the plaintiff. The verdict will be held final unless the trial judge committed some reversible error on the trial. The reciprocal wills made in 1885 were properly rejected. The wills made no mention of the bonds or of the title thereto. By the will of each, the other took all, but it is impossible to infer from that fact that the conversion of the bonds if owned by the wife was in any manner justified in law. There is nothing in the contents of the will of Mrs. Hillen that would render it improbable that the husband converted her bonds if her title thereto was proven at the time of her death. The offer to prove by the defendant that he did not know that his wife owned any property except a monthly payment of fifty dollars, was properly rejected. It involved a conversation with the wife, or a transaction with her. Section 829, Code; Holcomb v. Holcomb, 95 N. Y., 316.

The question whether the wife was handling money belonging ' to the husband was properly excluded for the same reason. If it was a material fact, it was a transaction between the parties. Clift v. Moses, 112 N. Y., 426; 21 St. Rep., 777.

We think the case was fairly tried and that the evidence sustains the verdict of the jury.

The judgment and order denying a new trial should be affirmed, with costs.

Pratt, J.

Plaintiffs, as executors of Anna Hillen, deceased, brought this action to recover damages for the conversion by defendant of seven $1,000 coupon bonds of the value of $8,050 which they claimed was their property as such executors. The defendant denied the conversion and claimed ownership of the bonds.

The jury ordered a verdict for plaintiff for $8,553.75, and the court denied defendant’s motion for a new trial.

The defendant and the deceased were husband and wife, having been married some twenty-five years. She died in 1890, leaving a will, which was duly admitted to probate, by which she appointed plaintiffs her executors. They were her daughters by a former marriage.

It appeared on the trial that the defendant purchased the bonds in question at different times between June, 1880, and July, 1883, in his own name, and kept them in a safe in his store until the fall of 1883, when owing to a fire he caused them to be handed to his wife, who put them in a trunk. The defendant testified that he owned and at times went to the trunk, he having one key to it, and got out the bonds at about the time coupons became due, and sometimes found the coupons cut off a little ahead of the time they became due. That he never parted with his title to the bonds during his wife’s lifetime. He also testified, and in this was corroborated by one witness, his niece, that the trunk contained wearing apparel and papers, besides these bonds, that belonged to him.

It appeared from the testimony produced by plaintiffs that the deceased owned ten or eleven bonds some twenty years ago ; that whenever she left her house she took the bonds in question with her, enclosed in a muslin bag tied on her person ; that she made several visits to her relatives, having these bonds in her possession, which she showed and spoke of as her own; that for .several years before her death she cut off the coupons, or had her daughter cut them off, and used the proceeds ; that on one occasion, when she was going out of the house and was taking her bonds with her, the defendant remarked, “ She always takes her bonds with her for fear the house will burn down before she gets backthat on one occasion the defendant asked his wife to allow him to use the bonds, which she refused to do; that on another occasion she upbraided him for not bringing her a bond she had given him the money to purchase for her, and that in reply he said “ You shall have your bond. ”

Shortly after the death of his wife the defendant caused a key to the trunk, which she kept under her pillow, to be handed to him by the attendant, and he then took the bonds from the trunk and carried them away. Subsequently, as the plaintiffs and their husbands testify, he admitted in effect that the bonds belonged to his wife. The defendant, however, denied having made any sucli admission, and says that he told them he owned the, bonds. The trunk appears to have been brought into court, and one or two of the plaintiffs’ witnesses testified that for several years before Mrs. Hillen’s death it contained none of the defendant’s papers, but ■only the bonds and other articles belonging to Mrs. Hillen.

It seems to us that the court was right in submitting to the jury the question of the ownership of these bonds. Its charge was fair ■and in no way prejudicial to the defendant.

The only question that remains is as to the exceptions taken by defendant. There is only one exception that appears to us to require any comment.

Counsel for defendant asked this question of him: “ Did you ever know of any property that your wife had, except this $50 a month that she used to get?” To this the plaintiffs objected, and the court sustained the objection unless defendant “ put it outside of any conversation or transaction with his wife.” The answer ■sought to be obtained was evidently “Ho.” Suppose he had so answered, it would then have been an assertion of want of knowledge on his part as opposed to positive statements by several witnesses. Had defendant’s counsel wished to prove that the deceased did not own property he should have followed the question by others, and taken the ruling of the court upon them.

The judgment and order appealed from should be affirmed, with costs.

Dykman, J., concurs.


text:
    James H. Watson et al., Appl'ts, v. Gardner T. Cone, Impl'd, Respt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Mechanic’s lien—Abandonment by contractor.
    Where a contractor abandons work at a time when he has been paid in full, without collusion, for all work actually done, and the owner is compelled to pay more than the contract price to finish the house, a material man can get no lien.
    Appeal from judgment dismissing complaint as to defendant, Gone, and directing the cancellation of the notice of lien.
    The plaintiffs furnished materials to the defendant Jacob Y. Smith, which were used by Smith in the erection of a house for defendant Cone under a contract.
    The plaintiffs having filed their notice claimed a lien under the statute.
    The amount agreed to be paid by defendant Cone to defendant Smith; the contractor, was $4,300 four instalments of $1,300, $800, $900 and $1,300; the third payment to be made when plastering was completed; the last when the house was finished. Cone paid the first two payments and $700 on account of the third, when the contractor, not having finished the plastering, abandoned the contract altogether. Cone then finished his house according to the original plans. The finishing of the plastering cost him $525, and the completion of the house in all its parts about $3,000, i. e., about $1,500 more than the contract price.
    The notice of lien was filed after the contractor abandoned the work.

      J. Herbert Watson (Horace Graves, of counsel), for app’lts;

      Josiah T. Marean, for resp’t.
   Barnard, P. J.

The defendant Smith agreed with the defendant Cone to construct a house on his1 premises for the sum of $4,300 payable by instalments. The first two instalments had been paid, and $700 in advance, but without any collusion or intent to defraud thereby. Smith abandoned the contract and Cone was compelled to pay over $3,000 to finish the house. The first two payments were $2,100. The owner had the right by contract to finish the building and to deduct the expense from the contract price. There was performed at the abandonment of the contract by Smith no greater proportion of work to be done than the first two payments bear to the contract price of $4.300.

The case of Van Clief v. Van Vechten, 130 N. Y., 571; 42 St. Rep., 736, decides this case against the plaintiffs.

The judgment should be affirmed, with costs.

Dykman and Pratt, JJ., concur.


text:
    Cornelius McLean, App'lt, v. George H. McLean et al, Resp'ts.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Partition—Cestuis que trust cannot maintain.
    The father of the parties, by his will, gave the remainder of his estate to his executors in trust to apply one-half the income to each of his sons during his natural life, and at his death to pay one-half the estate to his issue. A power of appointment was given to each son as to a certain portion of his share. Held, that the sons had no legal title in the estate, but were simply beneficiaries for life, and could not maintain partition.
    Appeal from judgment dismissing the complaint.
    Action for partition.

      Norman A. Lawlor, for app’lt;

      Clifford A. Hand, for resp’ts.
   Barnard, P. J.

James McLean died in 1890, leaving a last will. By this will, after giving certain money legacies to one of his sons and to John Ordig and James L. Wallace, and after creating a trust for a grandchild for $5,000, he gave all the remainder of his estate, real and personal, to his executors. The •executors were to retain the estate as trustees and to apply the half income thereof to each of his two sons, Cornelius and George H. McLean, during his natural life. At the end of the life estate of each the one-half of the estate was to be paid over to the then living issue. There was a power of appointment given each son to will a certain portion of his share of the estate. The two sons survived the testator. The plaintiff brought this action for a partition of the real property of deceased. The answer of the other son sets up the will and it was proven in the case. The plaintiff has no legal title in the estate. He is simply a beneficiary for life in one-half thereof, the legal title being in the executors. The trust was one of the express trusts authorized by statute. 1 R. S., 728, § 55.

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

Pratt, J., concurs ; Dykman, J., not sitting.


author: Dykman, J.

text:
    Thomas C. Arnow et al., Resp'ts, v. John D. Ferguson, Impl'd, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    -Costs—Res adjudicata.
    On recovery by defendants the court ordered that but one bill of costs be taxed, which was taxed in favor of 0. A bill was also taxed in favor of F., which was vacated and the order of vacation affirmed on appeal. Held, that an appeal from an order restraining the taxing of a bill of costs for F. was governed by the former decision.
    Appeal from order forbidding taxation of costs in favor of defendant Ferguson.

      William C. Reddy, for app’lt;

      Seward Balcer (J. W. Bartram, of counsel), for resp’t.
   Dykman, J.

This was an action for trespass on lands against several defendants, and a verdict was rendered in their favor at the circuit.

Thereupon the trial j udge ordered that but one bill of costs should be taxed in favor of the defendants against the plaintiff.

Notwithstanding that order the defendant Ferguson taxed a bill of costs in his favor and entered a judgment therefor, although the costs were allowed by the same order of the trial judge to the defendant Charles.

That judgment was vacated and the defendant appealed from the order to the general term, where it was affirmed. 80 St. Rep., 851.

Thereafter the defendant Ferguson noticed another bill of costs for taxation, and on motion an order was made at special term restraining the taxation thereof, and from that order we have this appeal.

There is nothing new presented, and this appeal is governed by the former decision of the general term.

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

Pratt, J., concurs; Barnard, P. J., not sitting.


text:
    Mortimer Mansfield, Resp't, v. Wilhelmina Raab et al., Ex'rs, App'lts.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Verdict—Appeal.
    Where the evidence is conflicting and contradictory, and no exceptions were taken to the charge, the verdict will not be disturbed on appeal.
    Appeal from judgment in favor of plaintiff, and from order denying motion for a new trial.

      L. Laflin Kellogg, for app’lts;

      Charles Be Kay Townsend, for resp’t.
   Dykman, J.

The plaintiff in this action made an agreement in writing with Barbara Raab by which he undertook to erect a two story and attic frame building at Bayville, Long Island, and a barn and bath-house, according to certain drawings and specifications.

The agreement was made on the 28th day of July, 1887, and the plaintiff commenced the execution of the contract in two or three weeks thereafter, and continued- his work upon the buildings until about the middle of February, 1888, when he left.

This action was commenced for the recovery of damages, based upon the claim of the plaintiff that he was wrongfully discharged by the defendant without cause,' and sustained damage thereby.

The cause was tried at the circuit, and a verdict rendered by the jury in favor of the plaintiff for $6,490, and the defendant has appealed from the judgment, and from an order denying a motion for a new trial upon the minutes of the court.

The testimony on the trial was conflicting and contradictory, and in many material respects irreconcilable. The evidence of the plaintiff and his witnesses proved many breaches and violations of the agreement on the part of the defendant, and improper interference with the progress of the work on the part of her brother.

But their evidence was sharply contradicted by the witnesses on the part of the defendant, and a case was thus made for the determination of a jury.

The case was submitted to the jury by a charge to which there were no exceptions, and which fully explained the questions for their determination, and the verdict was given for the plaintiff as we have seen.

Under such circumstances an appellate tribunal possesses but little power. If the testimony on the part of the plaintiff commanded the belief of the jury, as it must have done to produce such a verdict, then it was amply sufficient. It must be assumed also that the jury failed to believe the testimony on the part of the defendant, for that was sufficient to defeat a recovery.

Such being the situation, we cannot interfere with the verdict, and as we discover no error of law in the record, the judgment and order denying the motion for a new trial should be affirmed, with costs.

Pratt, J., concurs; Barnard, P. J., not sitting.


text:
    Albert D. Genung, Resp't, v. The New York & New England Railroad Co., App'lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    1. Railroad—Fire caused by.
    Proof that prior to the passage of a train there was no fire, and that after it passed plaintiff’s field was burned over by a fire which was traced back to the railroad, where there had been an accumulation of old grass and refuse, is sufficient to justify the presumption that the fire was caused by sparks or coals from the engine which passed, and that such engine was defective or improperly managed.
    ■2. Same—Use of another road.
    The defendant used the tracks of another corporation at this point. It admitted that it ran trains by that place during that month, and there was no proof that any other trains than those of defendant passed over the road during said month. Held, that this justified the inference that the fire was caused by defendant’s engine.
    3. Same.
    Defendant cannot escape liability on the ground that the accumulation of grass and rubbish iyas the result of carelessness of the other corporation, as notwithstanding its presence there would have been no fire but for its own negligence, which was, therefore, the primary cause.
    Appeal from judgment of the Dutchess county court, affirming judgment of a justice’s court in favor of plaintiff.

      Walter C. Anthony, for app’lt;

      Hansom Baker, for resp’t.
   Dykman, J.

This action was commenced in a court of a justice of the peace in Dutchess county, for the recovery of damages for setting fire to the grass upon the plaintiff’s land and destroying the same by fire.

It was the claim of the plaintiff that his grass was set on fire by sparks or coals which escaped from a locomotive engine of the defendant while passing over the railroad of the Newburgh, Dutchess & Connecticut Railroad in the town of East Eishkill in Dutchess. county, in the month of July, 1891.

Upon the trial the defendant admitted that it run trains over the Newburgh, Dutchess & Connecticut Railroad in the month of July, 1891.

The cause was tried before a justice of the peace without a jury, and he rendered a j udgment in favor of the plaintiff for $100 damages and the costs.

That judgment was affirmed on appeal to the county court of Dutchess county, and the defendant has appealed from the judgment of affirmance to this court.

The insistence on the part of the appellant is, that the proof of negligence was insufficient to impose liability, and that the defendant is not liable or responsible for any condition of the road of the Newburgh, Dutchess & Connecticut Railroad, and we must examine the two questions thus presented.

The testimony on the part of the plaintiff shows that the New-burgh, Dutchess & Connecticut Railroad runs through the farm of the plaintiff. That a field of grass of about six acres ran up to the line of the railroad, and that there was brush and grass on the railroad, besides considerable dry grass and refuse lying among the stone, besides an early June grass also dead at that time.

The plaintiff was drawing rye from a field near the railroad, and, while he was in the barn with a load, a train passed - down over the railroad. There was no fire burning when he went in, and when he went out, after unloading the rye, he saw the fire on the railroad. It was burning the old grass, and the wind was high and they could not extinguish it, although there was another man who came to assist them. It burnt over six acres, and the course of the fire was traced back and found to have started next to the track of the railroad.

No testimony was offered on behalf of the defendant.

The testimony was sufficient to justify the presumption that the fire was caused by sparks or coals from the locomotive which passed down while the plaintiff was in the barn unloading the grain. That was on the 11th day of July, and the admission was. that the defendant ran trains over the railroad at that place in July, and there was no proof that any other trains passed over the road in that month but those of the defendant.

The inference is justified, therefore, that the fire was set by the locomotive of the defendant.

And as there could have been no ignition of the dry substances without the emission of sparks or coals, the presumption is that such emission took place, and that presumption raises an inference that the engine was defective or improperly managed.

The plaintiff thus established a case that was good until it was answered or contradicted, and as there was no defense attempted, the judgment was justified.

The defendant cannot escape liability on the ground that the accumulation of the dry grass, brush and rubbish was the result of the carelessness of the Newburgh, Dutchess & Connecticut Railroad Company.

The defendant adopted the railroad of another company for its own use, and if combustible material had accumulated along the track which was set on fire through the negligence of the defendant, we think it must answer for the consequences.

notwithstanding the presence of the dry material, there would have been no fire but for the negligence of the defendant; such negligence was, therefore, the primary cause of the damage, and imposed liability upon the defendant therefor.

The record discloses no error, and the judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.


text:
    The Excelsior Brick Co., App'lt, v. The Village of Haverstraw, Resp't.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Villases—Discontinuance and alteration of streets—Estoppel.
    A mere resolution of village trustees discontinuing a highway and substituting a way to which the village has no title, without application therefor, release of damages, certificate of freeholders or opportunity to the owners of property to be heard, is inoperative and void, and the village is not estopped thereby from claiming that such street still exists.
    Appeal from judgment dismissing the complaint
    This is an action brought to obtain an injunction to restrain the defendant from filling in or interfering with “ Division street ’’ in the village of Haverstraw.
    The defendant is incorporated under the general law -in relation to the incorporation of villages. 2 R S., 8th ed., 982.
    Division street is one of the public streets of the village, unless it ceased to be so by reason of the order of the board of trustees adopted June 14, 1887.
    Such order was adopted without calling any jury to pass on the question whether the street had become unnecessary, and without any notice to or hearing of the parties interested.
    The plaintiff claims within a year or two past to have taken possession of Division street. But the deeds to plaintiff and his grantors run to and along the outer lines of the street, and exclude the street, and it affirmatively appears that the plaintiff has no title to the land embraced in the street.
    This is the second appeal herein to the general term. On the former appeal the defendant’s contention that the order of the board of trustees of J une 14, 1887, is void, was fully sustained and a new trial was ordered which resulted in a judgment for the defendant from which the plaintiff has brought this appeal. The case differs in nothing from that presented on the first appeal, except that the complaint has been amended by setting up an estoppel.

      Irving Brown (Calvin Frost, of counsel), for app’lt;

      Alonzo Wheeler {F. A. Brewster, of counsel), for resp’t.
   Dykman, J.

This action is before us for the second time, but it comes in the same shape as before, except that the complaint has been amended so as to present the question of estoppel.

We adhere to our former decision, and hold that there is no estoppel. Driggs v. Phillips, 103 N. Y., 77; 3 St. Rep., 69.

Barnard, P. J., and Pratt, J., concur.


text:
    William Sutton, Resp't, v. The New York, Lake Erie & Western Railroad Co., App'lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Master and servant — Negligence — Failure to burnish competent SERVANTS.
    Plaintiff was told by the yardmaster to get under a car to repair it, with an assurance that he would be notified before a neighboring train was moved. No notice was given, and a car with a broken brake was started which collided with the one under which plaintiff was. It appeared that the yardmaster had been previously guilty of negligence in similar matters; that the superintendent had been notified thereof and had promised to discharge him. Held, that the question of defendant's negligence in not' furnishing competent fellow servants, and that of plaintiff’s contributory negligence, were properly submitted to the jury.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.

      Lewis IS. Carr, for app’lt;

      John M. Gardner, for resp’t.
   Barnard, P. J.

The plaintiff was a repairer of cars in the defendant’s employment at Newburgh while the cars were in the yard. In November, 1890, there was a train of cars upon the side track in the yard and one of them needed repairs. Sutton went under the car while it was upon the track to make the repairs. After he had been at work for some time one Ryan, the conductor in charge of a crew of men in the yard, told plaintiff to get out from under the car until he coupled the engine to the train. He did so. Ryan then told plaintiff that he would have to stop some time until a passenger train came out ahead, and that he must go back and fix the car and that he, Ryan, would let him, Sutton, know when he “ would be going to start out.” The car under which the plaintiff was working was standing alone and separated a few feet from the rest of the train. Ryan started up his train, some cars became detached at the rear end of the train, and in backing the head of the train to attach it to the rear end, so broken off, the cars were shoved violently against the plaintiff’s car and he was very seriously injured. Before the engine was put on the train there was a blue flag at the head of the train which was the proper signal to protect the plaintiff while at work. Ryan took this down when he put on the engine, and did not put it up again.

There was proof given tending to show that Ryan had been either extremely negligent or incompetent in the performance of his duties. On two or three previous occasions he had disregarded the blue flag which insured workmen against danger, and the general superintendent at the yard had notice of these instances of incompetency. The superintendent promised to discharge Ryan and that the plaintiff must return to his work. There was proof that the general superintendent was afraid to send men to work because Ryan was going into the flags and running the men down. There was proven that a brake in the car next to the plaintiff would not work; that with a good brake the car could be stopped in about eight feet, which might have saved plaintiff, and this broken brake had been in plain sight in the yard for two or three days before. The master was bound to furnish competent co-employees and to furnish good appliances for the employment. This case proven is supported in respect to the incompetency of the defendant’s employee, Ryan, by the case of Baulec v. N. Y. & H. R. R. Co., 59 N. Y., 356; Coppins v. N. Y. C., &c., R. R. Co., 122 N. Y., 557; 34 St. Rep., 214.

If" the accident was caused by a defective brake, the cases are numerous that the master is liable therefor. The question of the negligence of the plaintiff was a proper one for the jury. Kain v. Smith, 89 N. Y., 385.

The case upon the verdict of the jury in favor of the plaintiff, upon the disputed facts established, an acknowledged exception to the rule that an employee cannot maintain an action for the negligence of a co-employee against the common trustee.

The judgment and order denying new trial should be affirmed, with costs.

Pratt, J.

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

The vital question now is whether the evidence warranted the submission to the jury of the question whether the defendant was guilty of negligence in employing a negligent and incompetent servant whereby the plaintiff was injured.

We think it was proper to submit that question to the jury and that their verdict settles the question.

There was no dispute in the case as to how the accident happened, and the jury has found that it was through the negligence of one Ryan, a fellow servant with the plaintiff.

There was evidence tending to show that on several occasions prior to the accident Ryan, who was yardmaster, had been guilty of gross negligence in moving the cars in the yard while persons were at work on or under them in like manner as the plaintiff was employed upon this occasion.

This evidence presented a fair question to the jury whether the said Ryan was a competent and proper person to be intrusted with the important duties imposed upon him.

The several occasions to which this evidence referred covered a period of some months, and the circumstances were such that the defendant must be held to have had notice of Ryan’s incompetence or carelessness. There was some proof that Gallagher, who stood in the place of the defendant as to work done in the yard, had actual notice of Ryan’s improper conduct and promised to discharge Ryan.

The defendant claims that it had a reasonable time to investígate the report, but the best it could do was to suspend Ryan while investigating.

The plaintiff was told to remain and did so under Gallagher’s promise to discharge Ryan. Such conduct on the part of plaintiff could not be held to be contributory negligence on his part. Kain v. Smith, 89 N. Y., 385.

It was the most natural thing in the world to go to work upon that car again after Ryan told him to do so and he would notify him if he had occasion to back down any more cars. Plaintiff had a right to rely upon that promise and the same was entirely independent of the cause of the accident.

There was also some evidence of a broken brake upon one of the cars on which plaintiff was at work, but this seems to have been withdrawn from the jury by the charge.

The exception to the admission of evidence tending to show that Ryan had before the accident been guilty of certain specific acts of negligence similar to the one that caused the injury was not' well taken. It was legitimate evidence to show Ryan’s incompetency and knowledge of it by defendant

We find no error in the trial sufficient to warrant a reversal of the judgment

Judgment affirmed, with costs.

Dykman, J., concurs.


text:
    Abraham D. Covert, Resp't, v. David H. Valentine et al., App'lts.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    1. Watercourse—Diversion op water.
    A riparian proprietor is entitled to have the stream flow to and upon his land in the same manner that it always has, and one who, by alterations made above, diverts or sensibly diminishes such flow is liable for such damages as are sustained thereby, which liability does not cease after the work is done.

      2. Same—Work done por municipal corporation.
    The parties actually making the diversion are not relieved from liability by the fact that the work was done under a contract for a municipal corporation and on land of the latter; as the corporation would have no right to divert the water upon its own land or authorize the same to be done.
    3. Same—Damages.
    Where the defendants by digging a ditch upon land above the plaintiff substantially diminished the flow of water into his pond, the measure of damage is the difference in value of the pond caused by such diminution of water between the time the work was done and the commencement of the action.
    Appeal from judgment in favor of plaintiff. _

      Jesse Johnson, for app’lts;
    _ Benjamin W. Downing, for resp’t.
   Dykman, J.

This is a very simple action and based upon well defined principles of law.

The plaintiff is the owner of a mill pond which is supplied with water by a running stream called James brook, which in its course to the pond of the plaintiff runs over land belonging to the city of Brooklyn.

Under a contract with the city of Brooklyn, the defendants constructed an aqueduct from a stream of water called Bidgewood stream on one side of James brook, to a stream of water called Mansfield stream, and in doing so excavated a trench across the valley of the James brook about twenty feet in depth.

It is the complaint of the plaintiff that the natural flow of water in James brook has been diminished in quantity by the excavation so made by the defendants and that the water in his pond has decreased in consequence of such diminution, and also because the excavation is below the surface of the pond.

The action was tried at the circuit upon that theory and the plaintiff obtained a verdict of $1,000.

The defendants have appealed from the judgment entered upon the verdict and from the order denying a motion for a new trial upon the minutes of the court.

It is the legal right of all riparian proprietors to have natural streams of water flow to and from their land, and it has invariably been held since the time of the Year Books, both in England and in this country, that any diversion of such stream is illegal.

Such right is inseparably connected with the soil, not as an easement, but as a natural incorporeal right

The principle is so fundamental and so universal as to require the citation of no authority for its sustenance.

In the light of the principles thus before us we can see that the complaint contains a cause of action, and the testimony shows that the evidence produced in its support is sufficient to sustain the verdict.

The general rule of law applicable to this class of cases was correctly laid down to the jury by the charge of the trial judge. He told the jury distinctly, “ Where a party owns land upon which there is a running stream, he has the right to have that stream run forever, and whoever above him diverts or sensibly diminishes the flow of water upon him is guilty of a wrong and an action lies against such person.”

Again, the judge said in his charge, “ It seems that the city of Brooklyn owned the tract of land leading from a lake or pond towards the city. They have the right to dig down upon their land and put in a conduit to carry the water from their pond to the city of Brooklyn, but in so doing they have no right to divert, diminish or cut off this stream in question, and they can give no such right to a contractor.”

The judge also charged at the request of the counsel for the defendants that they were not liable in this action for any loss sustained by the plaintiff for interference with subterranean water having no definite channel, and were not liable except so far as they have interfered with some stream or pond above ground, and were only liable for loss of rental value by the plaintiff.

As, therefore, the jury was at liberty only to find a verdict for the diversion or diminution of the water, and there was evidence upon which such a finding could be based, it is to be assumed here that the jury so found and the verdict is for such injury.

It was the claim of the defendants that it was the continuance of the wrong which constituted the cause of action which had accrued to the plaintiff, and that the defendants were not liable for any loss or damage after they completed their work.

The defendants commenced the work in September and ceased in Rovember, and this action was commenced in May following, and the effect of the aqueduct upon the stream and pond is continuous.

We think the position taken for the defendants is untenable. They perpetrated the wrongful act and departed, but the injurious effect of the act continued, and the remedy of the plaintiff was an action for the recovery of the damages, and in an action at law for damages to real property resulting from an unlawful act the owner can only recover the damages sustained down to the commencement of the action. Pappenheim v. M. E. R. Co., 128 N. Y., 444; 40 St. Rep., 445; Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y., 116; Plate v. N. Y. C. R. R. Co., 37 N. Y., 472.

Reither do we think the liability of the defendants ceased when their work was done.

If they had dug a canal which received all the water in the James brook and diverted it into a new channel entirely away from the plaintiff’s pond, no one would contend that their liability would cease when their work was done which caused the diversion, and yet to a less extent that is just what the defendants did.

Again, immunity was claimed for the defendants because their work was done upon land belonging to the city of Brooklyn; but a sufficient answer to the contention is that the city could not divert this water upon its own land, and could not, therefore, authorize its diversion by the defendants. The act was wrongful and cannot be justified under any authority.

The rule of damage laid down by the trial judge was the differ ence in value of the pond caused by the diminution of the water between September and the May following, when this suit was brought, and we think that rule was correct. Lawrence v. M. E. R. Co., 126 N. Y., 483; 37 St. Rep., 834.

This action could not, and did not, proceed upon the assumption that the wrong and injury will continue forever, and that the permanent value of the real property is diminished, and, therefore, the diminution of the rental value, or the value of the use of the property only, is recoverable in this action. Damages for permanent diminution in the market value could not be allowed. Uline v. R. R. Co., supra.

Complaint is also made against the amount of the verdict, but it depends so much upon facts that we do not feel justified in any interference.

Our examination o.f the record detects no error, and the judgment and order should be affirmed, with costs.'

Pratt, J., concurs; Barnard, P. J., not sitting.


text:
    Mary Clemans, Resp't, v. The Supreme Assembly, Royal Society of Good Fellows, App'lt.

      (Supreme Court, General Term, Second Department,

      Filed December 12, 1892.)

    Benefit societies—Fraud in application.
    The defendant society defended an action on its certificate on the grounds that the deceased misstated his age in his application and falsely stated that he had never been rejected by any insurance company. The evidence as to age was conflicting, and there was evidence to the effect that defendant’s agent had made an applLation for deceased to another company which had been rejected, but that he concealed the fact of such rejection from deceased. Held, that a verdict for plaintiff would not be disturbed.
    Appeal from judgment; in favor of plaintiff, entered on verdict.
    This action was brought to recover the sum of $3,000 on a certificate issued by the defendant to this plaintiff on the life of Patrick Durnin. Patrick Durnin died November 5, 1888. The plaintiff thereupon made due and proper proofs of the death, and so forth, of said Patrick Durnin to the defendant, as required under its by-laws, and this fact is alleged in the complaint, and not denied in the answer, and, therefore, stands admitted. The defendant defends this action upon two grounds: 1. That the said Patrick Durnin in his application for insurance to this defendant made false statements as to his age. 2. That in such application he made a false statement claiming never to have been rejected bv any other insurance company, when in fact he had been so rejected. This made an issue which was submitted to the jury, and the jury found in favor of the plaintiff.
    The age of said Durnin was proven by his daughter to be as he stated in his application for insurance to the defendant. It was a fact that said Patrick Durnin had been previously rejected for insurance by another company, and the fact that lie was so rejected was not known to said Durnin by reason of the defendant’s agent, Simon Jacobs, having fraudulently kept the fact from him. The defendant’s agent, Simon Jacobs, was present when the application was made to the defendant for insurance, and answered part of the questions. Simon Jacobs was the supreme deputy of the defendant at the time that the said Durnin was taken as a member, and at the time he applied to the defendant for insurance, and substantially represented the defendant, in fact was one of the officers of the defendant. The proof on the part of the plaintiff shows that said Simon Jacobs was the agent of the Prudential Life Insurance Company, the one that rejected the said Patrick Durnin, and as such applied for insurance for said Durnin in said company; that said application was rejected, and that said Simon Jacobs instead of notifying said Patrick Durnin, told him that he had withdrawn the application for insurance, and would insure the said Patrick Durnin with the defendant, he being at that time a deputy trying to organize an order in Poughkeepsie of said defendant; that thereafter such order was organized, and the said Simon Jacobs was present when this plaintiff and said Patrick Durnin were being examined for insurance in said defendant ; that said Simon Jacobs knew that said Patrick Durnin had been rejected, but fraudulently concealed the same.

      W. R. Spooner, for app’lt;

      O. Morschauser, for resp’t.
   Barnard, P. J.

The proof of the age of Patrick Durnin was conflicting. The jury has found that there was no misrepresentation as to the age of the deceased. The proof was sufficient if credited by the j ury to establish that Simon Jacobs, the agent of the defendant, fraudulently concealed from the deceased the fact that he had been rejected by the Prudential Life Insurance Company as a member. Jacobs was the agent who made the application to the Prudential Company. The verdict of the jury is in favor of this fact, and is well supported by the evidence- and such finding is sufficient to free the deceased from any misrepresentation in that respect. Clemans v. Supreme Assembly, &c., 131 N. Y., 485; 43 St. Rep., 571.

The judgment and order denying new trial should be affirmed, with costs.

Pratt, J.

The questions of fact were fairly left to the jury, and the testimony sustains the verdict. There is no ground upon which the court can interfere.

The circuit judge charged the jury in accordance with the law as declared by the court of appeals upon the first appeal.

Judgment affirmed, with costs.

Dykman, J., not sitting.


author: Freedman, J.

text:
    David Lowenbein et al., Resp'ts, v. Henry Fuldner, App'lt.

      (New York Superior Court,

      General Term,

      Filed January 3, 1893.)

    Contract—Public Policy—Restriction as to manufacture.
    A provision in a contract for the manufacture of an article of merchandise according to a special and unique design, furnished by one of the parties thereto, prohibiting the manufacture of such article for other persons, is not against public policy, and may be enforced by injunction.
    . Appeal by defendant from interlocutory judgment and final judgment restraining him from making, selling or otherwise dealing in a certain sideboard.

      Abram Kling, for appl’t;

      Solon P. Rothschild (Otto E'orwitz, of counsel), for resp’ts.
   Freedman, J.

The action is brought to enjoin the violation by the defendant of the stipulations of a contract made between the parties whereby the defendant engaged to manufacture for the plaintiffs, and-not otherwise, a certain article of merchandise known as a sideboard of a certain character.and description according to a special and unique design and certain working drawings furnished by the plaintiffs.

The restriction imposed by the contract upon the defendant is a reasonable one, and there is nothing in it which is against public policy. At the trial the plaintiffs brought their case fully within the principle of the decision of Saltus v. Belford Co., 133 N. Y., 499; 45 St. Rep., 872; and also satisfactorily showed that the common law affords them no adequate remedy against the violations, actual and threatened, of the contract by the defendant.

Upon the whole case the equitable interposition of the court is fully justified and the defendant stands properly enjoined.

The judgment should be affirmed, with costs.

McAdam and Gildersleeve, JJ., concur.


text:
    Alpheus W. Montgomery, Resp't, v. James M. Waterbury et al., Appl'ts.

      (New York Superior Court,

      General Term,

      Filed January 3, 1893.)

    1. Patents—Compensation fob use of—Estoppel.
    Where a party has contracted with the owner of an invention for the use of his patents and agreed to pay him a compensation therefor, he cannot set up the invalidity of the patents as a defense to an action for such compensation, even though the contract does not contain an express agreement not to question their validity.
    3. Same—Evidence—'Value of license.
    Where the original contract for such use provided as compensation a per centage on the' gain in weight in defendants’ goods by the use of the patents, and at the termination thereof such use was continued under an assurance that a satisfactory arrangement would be made, the actual gain in weight of the goods during the period in controversy is the best basis for computing the reasonable value of the use of the patents, and hence evidence as to their validity or invalidity is immaterial on that question.
    Appeal by the defendants from a judgment entered in favor of the plaintiff upon the verdict of a jury, and from an order-denying defendants’ motion for a new trial.

      j. M. Hindon Hyde, for app’lts;

      Hathaway & Montgomery (H 0. Atwater, of counsel), for resp’t.
   Freedman, J.

The action was brought to recover the reasonable value of a license to use two patented processes relating to the manufacture of ropes and yarns, and familiarly known as the tar and the oil processes, under an alleged license from the plaintiff to the defendants. This is the theory of the complaint. Upon the trial the plaintiff had a verdict upon the theory that pursuant to an agreement made between him and the defendants lie, as the superintendent of defendant’s factory, was to use the said patented processes in the business of the defendants and for a reasonable compensation over and above his regular salary. No claim was made by the defendants at any time during the trial that they were in any way surprised by the proof, and all the evidence to prove the plaintiff’s case was admitted without objection on the part of the defendants that it varied from the complaint. Under these circumstances it was too late for the defendants to attempt to raise the point after the close of the testimony on both sides. Even then they did not claim that they had been surprised. Moreover, there was no variance between the allegations of the complaint and the proof sufficient to call for a reversal of the judgment. The proof abundantly established that the plaintiff was employed to use in the business of the defendants certain processes in oil or tar which he had invented, and for which he had applied for, or obtained a patent, and that while the plaintiff had the right for the purpose of the contract to use any other processes which he might invent, yet as matter of fact no others were invented, and what the plaintiff was paid for at the end of the first year was for the use of his patented processes mentioned in the complaint, and when the agreement was made for the continuation of that use, the idea was that those processes or other similar processes should continue to be used, and, as matter of fact, the plaintiff did use the same processes which he had used before, .and for which he had a patent, so that the intent of the parties ip substance was that the plaintiff should be paid for the use of his patents.

The defendants, having contracted with the plaintiff for the use of his patents, and agreed to pay him a compensation therefor, cannot set up the invalidity of the patents as a defense to the action to recover the compensation. Hyatt v. Ingalls, 49 N. Y. Superior Ct., 375; aff’d 124 N. Y., 93; 35 St. Rep., 114. It is not necessary, as happened to be the additional fact in Hyatt v. Ingalls, that the defendants should have bound themselves by the •express terms of their agreement not to question the validity of the plaintiff’s patents, for even without such a clause they are estopped. Saltus v. Belford Co., 133 N. Y., 499; 45 St. Rep., 872.

Nor is it necessary to show an express agreement to pay for the use or an agreement for a fixed sum. An action will lie to recover the reasonable value of the use of a patent where the patent has been used under such circumstances as are sufficient to warrant the 'inference of an implied agreement to make compensation for the use. United States v. Palmer, 128 U. S., 262; Packet Company v. Sickles, 19 Wall., 611.

The defendants insist, however, that even if they were estopped from raising at the trial the point of the invalidity of the patents as a complete defense to plaintiff’s cause of action, evidence of the validity, or invalidity, of the plaintiff’s patents was material as affecting the value of the use of the patents. The action is not for a fixed license fee, but for the reasonable value of the license during a certain period. The defendants never promised a definite sum. In such a case the validity, or invalidity, of the patent ordinarily has an important bearing on the amount of the value to be recovered. But in the present case such proof became immaterial for the following reasons:

For the year preceding the period in controversy here there was a written contract in force between the parties, under which the defendants were bound to pay to the plaintiff for the use of his patents ten per cent of the value of the gain in weight of the goods manufactured. Rope is sold by weight, that is, at so much a pound, and it was considered that if any of plaintiff’s processes would take the same amount of raw material, that is, so much hemp or sissal, and make out of it more pounds of rope than could be obtained by the old method, the gain in weight so obtained would be the direct profit of the process.

Under this contract the plaintiff did use his processes and with them produced a gain in the weight of the goods.. At the end •of the year, or rather as soon thereafter as the books were made up, the defendants furnished the plaintiff with a statement of such gain in weight as shown,by their books as compared with the gain in weight during the previous year, and in accordance with ■this statement they paid to the plaintiff, as his ten per cent of the profit so made by them, the sum of $8,139, thereby admitting that by the use of plaintiff’s processes they had made a gain •of over $80,000, over and above the gains which they would have made with the old methods. At the end of the year for which ■this contract ran, but before any account for that year had been .stated or settled between the parties, the plaintiff had a conversation with one of the members of defendants’ firm in regard to •continuing the use of the processes referred to. Plaintiff said that the arrangement for one year had expired, but that the result had not yet been ascertained, and whether he should go on and continue to use his processes. He thereupon was' told to go on, as that was all the money there was in the business, and that a satisfactory arrangement would be made with him for the use of the processes. In consequence of this assurance the plaintiff went on and used the processes as before. Subsequently some efforts were made to get at a fixed basis, but without success, and the plaintiff finally left. These facts now stand established by the verdict of the jury. In view of these facts, if the plaintiff was •entitled to recover at all, the actual gain in weight during the period in controversy furnished the best basis for computing the reasonable value of the use of plaintiff’s processes, and the case was submitted to the jury upon this theory. The jury were instructed to determine what the agreement was between the parties, and, if they found it to be as claimed by the plaintiff, to find the actual gain in weight during the period in question upon the whole evidence and after paying due regard to the explanatory evidence given by and on behalf of the defendants, and then to award to the plaintiff ten per cent of the profits represented by such gain in weight, if they should think it proper; and if they should not think it proper, and consider such a rate to be excessive, to award ;such a sum as under all the circumstances would constitute a reasonable compensation.

This was all the defendants were entitled to. No request was made that any other question of fact should be submitted. The period for which compensation was claimed consisted of six-months and fifteen days, and under the instructions given to them the jury found a verdict of $3,136. There is sufficient evidence to sustain the verdict for this amount.

The parts of the contract with the National Cordage Company, which were admitted in evidence, were evidently admitted to contradict the testimony of one of the defendants upon a material point, and for this purpose the evidence was competent.

Upon a careful review of the whole case no exception has been found which calls for reversal.

The judgment and order should be affirmed, with costs.

Mo Adam and Gildersleeve, JJ., concur.


author: Gtldersleeve, J.

text:
    Joseph Romaine Brown et al., Resp'ts, v. Fannie Ida Helmuth, App'lt.

      (New York Superior Court,

      General Term,

      Filed, January 3, 1893.)

    Brokers—Commissions.
    When the contract of sale is signed, the broker’s commission is earned, and it is due to him. although the contract is not carried out, unless some culpable acts of the broker can be shown to defeat his claim.
    Appeal from judgment of trial term, entered on verdict of jury, and from order denying motion for new trial.

      James J. Thomson, for resp’ts ;

      L. Laflin Kellogg, for app’lt.
   Gtldersleeve, J.

Plaintiffs obtained a purchaser for the defendant’s house. The purchase price was agreed upon between the purchaser and defendant; and, at defendant’s request, the plaintiffs prepared the contract of sale, which was duly executed by the purchaser and defendant; whereupon the defendant was paid and received $2,000, on account of the purchase money. These facts are established by competent and sufficient evidence, and they clearly entitle the plaintiffs to their legal commission, to wit, one per cent, of the purchase price. When the contract was signed, the plaintiffs’ commission was earned, and it was due to the plaintiffs from the defendant, unless some culpable acts of plaintiffs can be shown to defeat their claim. There is no evidence that warrants the imputation to plaintiffs of fraud or deceit in bringing about the execution of the contract. The plaintiffs’ claim is not barred upon that ground.

The defendant, however, does assert that the failure to complete the sale of the premises was due to the negligent and careless manner in which the contract was drawn by the plaintiffs. The acts of negligence charged consist of the omission from the contract of the restrictions contained in the deed to the premises. These omissions, the defendant alleges in her answer, were the reasons given by the purchaser for rejecting the title and refusing to complete the purchase.

The alleged acts of negligence are made the basis of a counterclaim. One of the errors assigned by the learned counsel for the defendant is that the trial judge improperly dismissed the counterclaim. This contention is not tenable, for the reason that there is no evidence whatever to support the counterclaim. Had it been submitted to the jury, and had the jury upon the evidence as it stands on the record found in favor of the defendant on the counterclaim, it would have been the duty of the court to set aside the verdict for the want of evidence to support it.^

We find no exceptions to the admission or exclusion of evidence that calls for a reversal, and we think the charge of the learned trial judge, when taken as a whole, left such issues as there were in the case properly to the jury.

The judgment and order appealed from must be affirmed, with costs.

Freedman and McAdam, JJ., concur.


author: Per Curiam.

text:
    Henry Trowbridge et al., Resp'ts, v. Charles C. Harrison et al., App'lts.

      (New York Superior Court,

      General Term,

      Filed January 3, 1893.)

    Contract—Sale op goods to arrive.
    Plaintiffs, in September, sold to defendants sugar to be imported. The contract was made with direct reference to the course of plaintiff’s business and the sugar was to be shipped on plaintiffs’ vessels in due course of business. No time of delivery was specified, and subsequently a request to insert the words “ prompt shipment” was refused. Part of the sugar arrived and was accepted, but upon being notified that another vessel was loading in the latter part of October, defendants refused to receive the cargo under the contract, and on arrival in November refused to accept it. It appeared that the round trip of vessels might occupy forty to sixty days. Held, that there was proper dispatch in shipment and that defendants were not justified in their refusal to accept.
    Appeal from judgment in favor of plaintiffs entered upon report of a referee.
    The facts appear in the opinion of the referee, which is as follows:
    Henry B. Howland, Referee.—Plaintiffs and the defendants made contracts on the 19th and 20th of September, 1889, by which the plaintiffs sold to the defendants a quantity of Barbadoes sugar and also a quantity of Antigua sugar. The parties had ■dealt for several years together, and the defendants were, therefore, well acquainted with the plaintiffs’ method of doing business.
    The plaintiffs used their own sailing vessels, sailing from New York city, to import the sugars, and it is evident from the testimony that the contracts in question were made with direct reference to the course of the plaintiffs’ business, and that the sugars were to be shipped upon the plaintiffs’ vessels in the due course of their business.
    The contracts were separate contracts; the one for the Barbadoes sugar named the vessels by which the sugar was to arrive. The contract for the Antigua sugar provided that the sugar was to arrive per vessel or vessels to be named, to be shipped. On the •day following the making of the two contracts, the contract as to the Antigua sugar was amended to correspond with the amount of sugar which the plaintiffs actually had for sale, they having found that a larger quantity of sugar was included in the contract than they placed to be sold.
    The defendants subsequently requested, on the 23d of September, a change to be made and the words “ prompt shipment ” to be inserted in the contract, and this change the plaintiffs declined to make.
    The Barbadoes sugar arrived on the vessels named. Part of the Antigua sugar was received and accepted by the defendants, and the plaintiffs notified the defendants on the 10th of October that the ship “ Atlantic ” was at Barbadoes and was expected to go to Antigua to take the balance of the Antigua sugar. On the 15th the plaintiffs further notified the defendants that the il Atlantic ” would complete the shipment of Antigua sugar; the sailing date to be advised later. And again on the 21st of Octoher notified them that the “Atlantic” was loading at Antigua, and on the 26th of October defendants notified the plaintiffs that they could.not consent to receive the cargo of Antigua sugar by the “ Atlantic ” under the contract of the 19th of September. The sugar arrived on the 14th of November, was duly tendered to the defendants, who declined to receive it; it was sold for their account, and claim is now made for the difference between the contract price and the amount realized, which difference amounts to the sum of $3,865.60.
    It is claimed that in the absence of any specified time when the Antigua sugar should be shipped that it should have been shipped within a reasonable time, and the question to be determined is, whether the Antigua sugar, which came by the “Atlantic,” was shipped within a reasonable time.
    It is clear that the contracts were made with full knowledge of the course of business of the plaintiffs; that they were unable to name the vessels that should bring the Antigua sugars, and that it was understood that they should come by the first vessels of the plaintiffs which could bring them. That understanding was made clear to the defendants by the refusal of the plaintiffs to modify the contract a very short time after it was made, and then, if at any time, was the opportunity given to repudiate the contract, if it was not satisfactory to the defendants by reason of any misrepresentation.
    It appears by the testimony that the length of a voyage from New York to the Windward Islands is from ten to twenty days, depending upon wind and weather; that ordinarily twenty days might be occupied in loading, and the length of the voyage home would be governed by the same conditions as the outward voyage, and that the round trip might occupy from forty to sixty days.-
    It is apparent also from the correspondence that the plaintiffs expected vessels that arrived sooner than the “Atlantic” to bring the Antigua sugars, and some of it was brought by other vessels and accepted by the defendants.
    The “Atlantic ” sailed from New York on the 11th of September on her outward voyage. It was fair to suppose that she might have reached Antigua and loaded and returned sooner than she actually did. It was by no means certain that she would bring the sugar, but that other vessels might do so. In case other vessels did not bring the Antigua sugar she was to do so. There seems to have been no unnecessary delay, and as full dispatch on the part of the plaintiffs as they could make. They notified the defendants as soon as they learned themselves of the position of their vessels, and of the cargoes they would bring, and there is no evidence of any bad faith or any misrepresentations to induce the making of the contracts. It was for the plaintiffs’ interests to send the cargoes on as soon as possible, and if the defendants had made more particular inquiries as to the position of plaintiffs’ vessels they would have learned all about them. They waited until some days after they were informed of what vessels the Antigua sugars were to come by before refusing to accept them, and it seems to me there was proper dispatch, and that no defense exists to the claim by reason of the failure of the plaintiffs to bring the sugars within a reasonable time, considering the ability of the plaintiffs and the knowledge of the defendants as to their course of business, and I, therefore, give judgment for the plaintiffs.

      John F. Parsons, for app’lt;

      Arnoux, Bitch & Woodford (Henry Stoddard and Haley Fislce, of counsel), for resp’ts.
   Per Curiam.

The judgment should be affirmed, with costs, upon the opinion of the referee.

Freedman, McAdam and Gtildersleeve, JJ., concur.


author: Gtldersleeve, J. Freedman, J.

text:
    Peter De Lacy, Resp't, v. Alfred F. Walcott et al, App'lts.

      (New York Superior Court,

      General Term,

      Filed January 3, 1893.)

    Specific performance—Pleading.
    In an action for specific performance the complaint alleged that in consideration of the payment of certain money the defendants agreed to pay to plaintiff the same amount of stock and money which the original promoters of a corporation should receive; that a large quantity of money and stock had been divided among defendant W, and divers persons and that plaintiff only received stock to a certain amount and a paper entitling him to certain bonds. It contained no allegation as to the number of the original promoters, how much they were to receive nor that they in fact received anything. Held, that the complaint failed to state a cause of action.
    Appeal from interlocutory judgment overruling demurrer.
    The plaintiff brings this action to compel the specific performance by defendants of an agreement to deliver to him his distributive share of one million dollars of the capital stock of the defendant, Rapid Transit & Bridge Construction Company, and the repayment of the sum of ninety-five hundred dollars and other relief. The defendants, Walcott and Rapid Transit & Bridge Construction Company, demurred to the complaint, “bn the ground that it appears on the face thereof that the amended complaint does not state facts sufficient to constitute a cause of action.” The appeal is from an interlocutory judgment, entered at special term, overruling the demurrer.

      Hahn & Myers (F. J. Myers, of counsel), for resp’t;

      Lowrey, Stone & Auerbach, for app’lts..
   Gtldersleeve, J.

The first and second paragraphs of the complaint set forth formal matters not necessary to mention here, while the third and fourth and a portion of the fifth set forth the alleged representations made by defendant, Alfred F. Walcott, as a basis for the agreement in question and inducement to plaintiff to enter therein. In the fifth paragraph the obligations of defendants, created by the agreement, are alleged as follows: “ The said defendant, Alfred F. Walcott, promised and agreed, in his own behalf and in behalf of said defendant, Rapid Transit & Bridge Construction Company, that if this plaintiff would invest and contribute the sum of ten thousand dollars towards the said sum of one hundred thousand dollars, that said Bapid Transit Company and said defendant, Alfi-ed F. Walcott, would pay to this plaintiff the same amount of stock and money which the original promoters of said defendant, Rapid Transit & Bridge Construction Company, should or would receive from said defendant Rapid Transit & Bridge Construction Company, and that said plaintiff should receive from and be paid by said Rapid Transit & Bridge Construction Company, and defendant, Alfred F. Walcott, an amount equal to whatever the said original promoters received."

From a perusal of the complaint to the end of the fifth paragraph, it appears that defendant, Walcott, had secured a franchise to build an elevated railroad in Chicago, for which he was to pay, by a certain time, one hundred thousand dollars, or forfeit the franchise. The Rapid Transit & Bridge Construction Company, ' one of the defendants herein, had been incorporated with a capital of three million dollars. It had agreed to purchase the franchise and pay therefor ninety-five thousand dollars, in cash, and one million dollars of its capital stock. The defendant, Walcott, wanted to raise one hundred thousand dollars to pay to the city of Chicago, and so avoid the forfeiture and make the franchise permanent. The object of the agreement was to obtain from plaintiff ten thousand dollars toward making up the hundred thousand dollars required.

The sixth paragraph alleges the authority of defendant Walcott to make an agreement of the character in question that would be binding on defendant Rapid Transit & Bridge Construction Company.

In this discussion we are not attacking the validity of the agreement, but assume that the transaction was bona fide and that the agreement was as alleged and a valid and binding one upon defendants Walcott and Rapid Transit Company.

In the seventh paragraph plaintiff alleges that, relying upon the statements and promises as before set forth, and induced thereby, he paid defendant Walcott the sum of ten thousand dollars, to be used for the purpose of securing and retaining the franchise aforesaid.

In the eighth paragraph the plaintiff alleges that the whole amount of one hundred thousand dollars was raised and paid to the city of Chicago,- for said franchise, and that the franchise so obtained was transferred to the defendant, the Rapid Transit Company, and that said Rapid Transit & Bridge Construction Company assumed and agreed to carry out the promises, agreements and undertakings set forth in the fifth paragraph.

In the ninth paragraph plaintiff alleges that “ the defendant, Rapid Transit & Bridge Construction Company, repaid said guaranty fund, to wit: The sum of $95,000 in cash, and also further issued in payment of said franchise the sum of one million dollars in shares at par of the capital stock of said defendant Rapid Transit & Bridge Construction Company.” The plaintiff does not state in this paragraph to whom the $95,000 was paid, nor to whom the one million dollars in shares of capital stock were delivered.

The tenth paragraph of the complaint sets forth the extent of the interest which the original promoters had in the transaction by alleging that they “ were to receive from said Walcott and Eapid Transit & Bridge Construction Company for the moneys invested by them one million dollars of the capital stock of said defendant Eapid Transit & Bridge Construction Company, and were to be paid in additon thereto ninety-five per cent of the-amount contributed by them to and invested in said sum of one hundred thousand dollars. It is not alleged when the original promoters were to receive the stock and money; no date or event is named when they would be entitled to claim the same.

The substance of the eleventh paragraph is that said defendant corporation and Walcott issued and delivered in payment of said franchise to defendant Walcott and divers persons to the plaintiff unknown who are, therefore, designated as John Doe and Bichard Eoe, shares of capital stock of said defendant corporation to the amount of par value of the sum of one million dollars, and paid to the said Walcott and such unknown persons the sum of $95,000 in cash. There is no statement here that the “ divers persons,” or any of them, constituted the original promoters, or any of the original promoters or persons who organized said defendant corporation.

The twelfth and last paragraph of the complaint alleges a demand by the plaintiff of the defendant, Eapid Transit & Bridge Construction Company, and defendant, Walcott, for the payment of the sum of $9,500 in cash and shares of the defendant corporation to the amount at par value of the sum of $100,000, being the amount of cash money and shares of stock; what amount or what shares is not stated; but that “ said defendants have refused to pay him the said money or deliver to him the said stock, excepting only that they delivered to him one hundred shares of the capital stock of the defendant, Eapid Transit & Bridge Construction Company, of the par value of ten thousand dollars, and a paper writing stating that this plaintiff is entitled to ten thousand dollars of the first mortgage bonds of the Chicago & South Side Eapid Transit Company.”

The amended complaint fails to set forth a cause of action in favor of the plaintiff for the reason that it does not allege that the original promoters received any stock or money over and above what had been delivered to the plaintiff. There is no allegation in the complaint of a breach by defendants, or either of them, of the agreement which the action seeks to enforce by compelling a specific performance thereof. It is clear that by the terms of the agreement the plaintiff was to receive from the Eapid Transit & Bridge Construction Company and defendant, Walcott, an amount of stock and money equal to whatever the original promoters received. This was the promise made to the plaintiff, and the inducement upon which he parted with $10,000. Ño allegation can be found in the complaint that sets forth a breach of this agreement. It is nowhere in the complaint alleged who the original promoters of the said defendant corporation were, or how many "there were of them, except that it appears from an examination of the fifth and tenth paragraphs of the complaint that by “ original promoters ” was meant the persons who organized and exploited the defendant corporation. These were the persons among whom the plaintiff was to be an equal. Their respective rights were to determine his. The agreement contemplated a division of the stock and money, and when the division came, plaintiff was to have an amount equal to whatever these persons, called “original promoters,” received. But what this amount was the complaint fails to show. Indeed, it does not appear from the complaint that these promoters received anything.

The complaint set forth the agreement with great clearness and comprehensiveness, but it fails to allege a violation of it by either the defendant, Walcott, or the defendant corporation. It does not state what promise or obligation, created by the agreement, the defendants, or either of them, failed to perform. There is nothing in the complaint to show that one hundred shares of capital stock of the defendant corporation, which the plaintiff acknowledges having received, is not equal to whatever the original promoters received.

It is plain that if the plaintiff has a cause of action, it is because he has not received an amount equal to whatever the original promoters received; and we are of opinion that this cause of action is not set forth in the complaint and that the complaint fails to state any cause of action.

A defendant may learn outside of the complaint what he is sued for, and thus may be ready to meet plaintiff’s claim on the trial. He may know precisely what he is sued for, when' he receives the summons; yet it is his right to have a complaint from which he can learn what he is sued for, and to insist that it shall state the cause of action which he is called upon to answer.

The interlocutory judgment of the special term must be reversed with costs, aud the joint and several demurrer of the defendants, Alfred F. Walcott and Rapid Transit & Bridge Construction Company, to the amended complaint must be sustained, With costs, with leave to the plaintiff to amend the complaint upon payment of such costs.

Freedman, J.

I concur. The action not being for an accounting and the recovery of a balance upon facts to be ascertained, but for the recovery of a definite and specific share, the facts upon which the plaintiff is entitled to such share should have been set forth. The complaint fails to allege sufficient facts for that purpose.


text:
    Herbert Richmond et al., Resp'ts, v. Joseph W. Woolfolk, App'lt.

      (New York Superior Court,

      General Term,

      Filed January 3, 1893.)

    Bbokbbs—Bill of pabticulabs.
    In an action for brokers’ commissions alleged to have been earned fey procuring a satisfactory purchaser for fconds, of which fact they notified defendant, where the complaint is clear and comprehensive, a hill of particulars as to the name of such purchaser, and as to how and when such notice was given, will not he required.

      Appeal from order denying motion for a bill of particulars.
    Action to recover for breach of contract to pay commissions for the sale of certain bonds.
    The following is the opinion at special term :
    GtILBersleeve, J.—The plaintiffs are brokers, and this action is brought to recover commissions earned, as the plaintiffs claim, by procuring a satisfactory purchaser for the bonds the defendant had employed plaintiffs to sell.
    This motion is for a bill of particulars specifying the name of the purchaser, and how and when the plaintiffs notified the defendant that a purchaser had been procured.
    The defendant is not entitled to a bill of particulars in this case-as a matter of right. The court has the power and might, in its discretion, to order the plaintiffs to furnish the bill of particulars the defendant seeks. The papers, however, fail to disclose a condition that warrants the court in exercising its discretion in favor of the defendant. The allegations of the complaint are clear, comprehensive, and, we believe, sufficiently specific. The defendant is fully informed of the matters which plaintiffs must establish in order to succeed on the trial. The allegations of the complaint seem to be such as are usually set up in actions of this class. Plaintiffs cannot succeed unless they establish affirmatively that a purchaser was secured who was able, ready and willing to purchase the bonds within the time prescribed by the contract in respect thereto that was entered into between the plaintiffs and the defendant.
    Proof tending to establish these positions the defendant can meet without a bill of particulars of the character called for. It might be a great hardship to the plaintiffs to hold them down upon the trial to a bill of particulars, and work a grave injustice.
    _ The demand for a bill of particulars herein seems to call for a disclosure of evidence which plaintiffs are entitled to retain until the trial. _ The nature of plaintiff’s claim fully appears, and we are of opinion that it would not be proper to use the discretion of the court to require the plaintiffs to more fully advise the defendant of the proofs that will be offered upon the trial.

      Sullivan & Gromwell (.Edward B. Hill, of counsel), for app’lt;

      Henry G. Andrews, for resp’ts.
   Per Curiam.

The order should be affirmed, with ten dollars costs and disbursements, on the opinion of the special term.

Preedman and McAdam, JJ., concur.