author: Earl, Ch. J.

text:
    The People, Resp’ts, v. Rachel Brooks, App’lt.

      (Court of Appeals,

      Filed March 1, 1892.)

    1. Criminal law—Evidence—Impeachment oe witness.
    Upon the trial of an indictment for arson, after a witness had testified' that the prisoner had told 1 er that she intended to set fire to her stock of goods, the court refused to allow the latter to testify as to unfriendly relations between the witness and herself unless the witness was first examined on the specific points, when the prisoner might contradict her. Held, error; but that no harm was done to the prisoner, as sufficient evidence had already been given to show hostile relations.
    2. Same—Good character.
    After fairly charging the jury upon the question of reasonable doubt and the effect of good character the judge used this language: “And in the trial of the case, if that reputation has been shown to be good, yet if' the evidence on the trial indicates corruptness, fraudulent practice, bad heart, dishonesty, fraud, it rebuts, so far as' it goes, the reputation for-good character. That is-to say, positive testimony of the commission of a, crime extinguishes it altogether if you believe the testimony. Held, no» error.
    3. Same—Trial—Intemperate language used by counsel.
    This court has no jurisdiction to grant a new trial in a criminal case-unless exceptions appear in the record which present questions of law, andl cannot reverse on account of intemperate language used by the district attorney in his address to the jury to which no exception was taken.

      Appeal from judgment of the supreme court, general term, fourth ■department, affirming judgment of conviction of arson in the first •degree.

      Louis Marshall, for app’lt; T H. Hancock, dist. atty., for resp’ts.

       Affirming 39 St. Rep., 827.

   Earl, Ch. J.

The defendant was indicted for setting fire to the store occupied by her in the city of Syracuse on the 27th day ■of October, 1890. She was brought to trial in the court of sessions of Onondaga county in February, 1891, and was convicted •of arson in the first degree, and was sentenced to the Onondaga Penitentiary for the term of fifteen years. Her conviction having been affirmed by the general term of the supreme court she then -appealed to this court.

The learned counsel for the defendant has brought to our attention three grounds upon which he claims the judgment should he reversed.

Upon the trial the principal evidence adduced against the deieudant to show her guilt was that of Charlotte Brooks, the •daughter of her husband by a former wife, who was about •eighteen years old. She testified that three or four days before the fire the defendant required her to take an oath, by kissing the -Jewish Bible, that she would not tell. to any one what she was .-about to say to her, and that after she had taken the oath and promised that she would not tell, she said to her that she had bills for goods to settle, and that there was a judgment against her, and she was going to make a bonfire of the goods in the store, and burn them up; and that after she had taken the oath the defendant told her if she did tell what she had said to her she would be sent to prison for twenty years for perjury. There was other •evidence pointing to the guilt of the defendant and corroborating '.the story related by the witness Charlotte.

The defendant was called as a witness on her own behalf, and these questions were put to her by her counsel: “ Now state whether or not Charlotte was friendly to you or unfriendly ? ” “Did you and Charlotte have frequent difficulties during that time ? ” (Meaning the time previous to the fire.) “Did Charlotte assault you on other occasions previous to the fire? ” All these questions were objected to on the part of the prosecution as incompetent, because Charlotte had not been examined as to the particular matters enquired of on behalf of the defendant... The trial judge sustained the objection and excluded the evidence because ■Charlotte had not been examined as to the same matters, and her .-.attention had not been called to the particular matters enquired '■of. In making the ruling the trial judge said: “ You had the wit-mess here and can ask anything you wish of her that she has not •testified to, and if you think she has not told the truth you can ■•ask the witness about it, and I think that is as far as you can go; T think the rule is this : That a witness may be cross-examined -as to his or her attitude of mind in regard to the defendant, and .his attention must be called to each and all the transactions 'upon which the counsel for the defendant desires to give evidence. If dhe witness admits the acts and declarations that the defendant claims wer.e made and done, that is the end of it. If the witness denies, then I think it is competent to call other witnesses to contradict those matters; but to let a witness go off the stand, not having questioned the witness as to the particulars, and then calling third parties to prove independent transactions showing the attitude of the mind of the witness toward the party, I think is not the rule. So I have allowed, and do allow, this witness to testify as to any transactions bearing upon that point in regard to which the witness Charlotte was examined. ” And the judge said further: “I should say that the witness referred to is in court now, so that there is no loss to the defendant by the application of the rule as-I understand it” But the counsel insisted upon his right to examine the defendant for the purpose of proving Charlotte’s hostility towards her without first examining Charlotte in reference to the same matter.

We think the rule of law laid down by the trial judge was erroneous. The hostility of a witness towards a party against whom .he is qalled may be proved by any competent evidence. It may be shown by cross-examination of the witness, or witnesses may be called who can swear to facts showing it. There-can be no reason for holding that the witness must first be examined as to his hostility, and that then, and not. till then, witnesses-may be called to contradict him, because it is not a case where the party against whom the witness is called is seeking to discredit him by contradicting him. He is simply seeking to discredit him by showing his. hostility and malice; and as that may be-proved by any competent evidence, we see' no reason for holding that he must first :be examined as to his hostility. And such we think is the drift of the decisions in this state and elsewhere. Hotchkiss v. Germania F. Ins. Co., 5 Hun, 90; Starr v. Cragin, 24 id., 177; People v. Moore, 15 Wend., 419; People v. Thompson. 41 N. Y., 6; Schultz v. The Third Ave. R. R. Co., 89 id., 242; Ware v. Ware, 8 Grreenl., 42, 53; Tucker v. Welsh, 17 Mass., 160; Day v. Stickney, 14 Allen, 255; Martin v. Barnes, 7 Wis., 239; Robinson v. Hutchinson, 31 Vt., 443; New Portland v. Kingfield, 55 Me., 172; Hedge v. Clapp, 22 Conn., 262; Cook v. Brown, 34 N. H., 460. So we think the trial judge laid down an erroneous rule of law. But we are still of opinion that no harm was done-to the -defendant. The extent to which an - examination may go for the purpose of -proving the hostility of a witness must be, to-some extent at least, within the discretion of the trial judge. Ye-said about it in Schultz v. The Third Ave. R. R. Co., supra, that, “ the evidence to show the hostile feeling of a witness when it is alleged to exist should be direct and positive, and not very remote- and uncertain, for the reason that the trial of the main issue in, th‘e case cannot be properly suspended to make out the case o£ hostile feeling by mere circumstantial evidence, from which such hostility or malice may or may not be inferred.” ^

Before these questions were excluded, the defendant’s counsel on the examination of Charlotte proved by her that she and the defendant had had frequent altercations; that the defendant “used to whip her .lots of times ; ” that on a certain occasion when she was impudent to the defendant not long before the fire, the defendant threw her down; that on that occasion the defendant assaulted her and bit her and pushed and knocked her down on the floor, and when she got up she said to the defendant “ You will be sorry, what did I do to you ? My mother would not knock me down; ” and that her troubles with her step-mother were frequent; that they had trouble on every rainy day ; that “ she was disagreeable to her on rainy days. ” And the defendant, before -these questions were excluded, testified that a few days before the fire she and Charlotte had an altercation, and that “Charlotte got mad and pulled her down and slapped her in the face, and pounded her on her back ” so that she fell down and came near fainting away. We think there was ample evidence to show the state of feeling between the defendant and Charlotte, and if the examination of the. defendant upon that subject had been much further prolonged it could not have added any weight to the evidence already given on that subject. Sufficient evidence for every purpose of the trial had been given to show difficulties and hostilities between the defendant and Charlotte, and therefore it is clear that the defendant was not harmed by the exclusion of further evidence on that subject. Besides, the jury utterly disregarded the defendant’s evidence. She denied under oath all the evidence tending to implicate her in the crime, and explicitly denied that she had stated to Charlotte her intention to burn the goods in the building, and gave some evidence tending to cast suspicion upon Charlotte as the author of the crime. This is therefore a case where the rule laid down in § 542 of the Code of •Criminal Procedure should be applied. That section provides as follows: “ After hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.”

It is also claimed by the defendant’s counsel that the judge ■erred in his charge to the jury. Upon the trial of the action the defendant called several witnesses who testified to her good character. After fairly charging the jury on the question of reasonable doubt, and the effect of good character, he used this language : “ And in the trial of the case, if that reputation has been shown to be good, yet if the evidence on the trial indicates corruptness, fraudulent practice, bad heart, dishonesty, fraud, it rebuts, so far as it goes, the reputation for good character. That is to say, positive testimony of the commission of a crime extinguishes it altogether, if you believe the testimony.” After he had finished his charge the counsel for the defendant said: “ The ■charge is very satisfactory, and I do not rise to find any fault with it. Your honor has charged that if the jury find that there is reasonable doubt, that they must acquit. Now, I ask your honor to charge that good character may be sufficient to raise that reasonable doubt which requires the jury to acquit.” And the judge so charged. Then the counsel for the defendant further said: “ Your honor charged that if on the trial of a case it is shown that the person has been corrupt and guilty of fraudulent practices, it rebuts the evidence and the importance attached toil of good character; is an answer to it. I do not give your honor’s precise language; but that in substance and what your honor did charge upon that question, and all, I take exception • and furthermore I ask your honor to charge that these remarks-are not applicable to this case.” The judge refused to so charge. We do not think these exceptions to the charge were well taken. The judge had in his charge given the defendant the full benefit of the evidence as to her good character. He did not charge that the evidence of good character was not to be taken into-account with all the other evidence upon the question of her guilt or innocence. He did instruct them that if there was positive testimony of the commission of the crime by her which the; jury believe, it extinguished the evidence of good character altogether. That is literally true. If the jury upon any trial find positive evidence which they believe, that the defendant committed the crime charged, it must utterly overwhelm or destroy the-effect of the evidence as to good character. If the judge had. charged that the jury had no right to take into account the good character of the defendant in the case of positive evidence of her guilt, it would undoubtedly have been erroneous.

If he had charged them that they should not weigh the evidence-as to the defendant’s character with all the other evidence, however strong and positive, it would have been erroneous. The evidence of character may, however strong the other evidence is, raise a doubt in the minds of the jury which the defendant is. entitled to have the benefit of. If the instructions of the judge upon the question of character were not sufficiently explicit, the-defendant-should have requested a further charge, calling attention to further instructions which he desired the jury to have. After the judge had laid down the law quite plainly pertaining-to evidence of good character, and had at the request of the defendant’s counsel instructed the jury that good character might be-sufficient to raise a reasonable doubt which required the jury to acquit, if the defendant’s counsel thought any further instructions-were needed to protect his client, he should have asked for them. So we find no error in the charge to the jury.

We are also asked to reverse the judgment on account of intemperate language used by the district attorney in his address to-the jury, to which no exception whatever was taken. It is a sufficient answer to this claim to say that this court has-no jurisdiction to grant a new trial in such a case as this, unless exceptions-appear in the record which present questions of law. The supreme-court, under § 527 of the Code of Criminal Procedure, could, in-the exercise of its discretion, have granted a new trial in this case. In the early part of that section provision is made for a stay of' the execution of a judgment in a criminal case upon an appeal to-the supreme court, and in the last clause of the section it is provided as follows: “ The appellate court may order a new trial if' it be satisfied that the verdict against the prisoner was against the weight of evidence or against law, or that justice requires a. new trial, whether any exception shall have been taken or not in. the court below.” That clause has- reference only, as we have held, to appeals to the supreme court People v. Hovey, 92 N. Y., 554; People v. Guidici, 100 id., 503; People v. Donovan, 101 id., 632.

We see no reason to doubt that this conviction was justified by the evidence, and finding no error of law prejudicial to the defendant, it should be affirmed.

All concur.


source: Caselaw Access Project

author: Peckham, J.

license: Public Domain

text:
    The Lancashire Insurance Co. et al., App’lts, v. Robert A. Maxwell, Supt. of the Insurance Dept., Resp’t.

      (Court of Appeals,

      Filed March 1, 1892.)

      1. Insurance—Withdrawal op deposits with -state insurance department BY FOREIGN COMPANY.
    The supreme court has no power to authorize the withdrawal of a part of the money deposited by a foreign insurance company with the insurance department so as to reduce the amount to the minimum of $200,000 required by chap. 367, Laws 1862.
    3. Same.
    Such deposit is not technically the capital of the depositing company, but is a trust fund placed in the hands of an. official trustee for the benefit of policy holders in the United States. The whole deposit constitutes but one sum, and is in fact and law one trust fund for such purpose.
    3. Same.
    Even though the deposit might be regarded as capital for certain purposes, yet it is at all times capital impressed with the special trust provided for in the statute, and there is no power in the court to authorize or direct its withdrawal from the official trustee on any terms or conditions whatever.
    Appeal from judgment of the supreme court, general term, first ■department, reversing j udgment entered upon, an order overruling a demurrer to the complaint.

      Geo. DeForest Lord, for app’lts ; S. W. Rosendale, att’y-genl., for resp’t.

       Affirming 40 St. Rep., 729.

   Peckham, J.

Stated briefly, the plaintiff, the insurance company, desires to withdraw from the custody and control of the defendant, the superintendent of insurance of this state, all the funds which such company has heretofore deposited with the defendant over and above the sum of $200,000, which is the minimum amount provided for by law to be deposited with such superintendent by a foreign insurance company as a condition of doing b'usiness within thiá state. The question is primarily one of power on the part of the court to direct or permit such withdrawal upon any terms or conditions whatever. And that question depends upon the character in which the defendant received the deposit of such funds or securities over the amount of $200,000.

In construing the statutes relating to deposits with the superintendent, we agree with the general term herein. The importance of the question to the plaintiff, which its learned counsel has stated, has induced us to look with extreme care into the course of legislation upon this subject, but we are wholly unable to come to any other conclusion than that arrived at by the general term of the supreme court. The statute, chapter 367 of the Laws o£ 1862, (§ 23, at page 618), provides that an insurance company incorporated by, or organized under the laws of any foreign government shall “ deposit with the superintendent of the insurance department for the benefit and security of policy holders, residing in the United States, a sum not less than two hundred-thousand dollars in stocks,” etc. Prior to the passage of this act. the legislature had provided for the doing of business within this state by a foreign insurance company, and had enacted that before any of its agents should be permitted to do business for it in this state evidence should be furnished to the comptroller that such company had invested in securities of a similar character to that required by home companies an amount equal to the capital required from such home companies by § 6 of the general act, and that such securities and investments were held in trust by citizens of the United States for the benefit and security of such as bright effect insurance with such agent. Chap. 466 of the Laws of 1853, § 23.

The act of 1862 substituted an official trustee, viz: the superintendent of the insurance department, for the individual trustees with whom deposits had been made theretofore “for the benefit and security of such as may effect insurance,” etc. The deposit under the act of 1862 was made with the official trustee “for the benefit and security of the policy holders in the United States.” The-act provided that the deposit should be “a sum not less than $200,000, in stocks of the United States or of the state of New York * *

Although the minimum sum to be deposited under this act with the superintendent of insurance equalled the minimum, amount of capital which home companies organized to do busi-„ ness in the county of New York or Kings were permitted to have, yet the sum so deposited was not technically the capital of the company making the deposit. It was a trust fund placed in the-hands of an oficial trustee for the benefit of policyholders in the United States. It was a special security to such persons, and although it might have been taken from the capital of the company, yet when deposited with the oficial trustee under our own statute it became a trust fund' for specially named policyholders,, "to which they could resort by virtue of the deposit, and not because it was capital in any sense. The learned counsel for the plaintiff does not claim that the minimuni amount of $200,000-deposited under the" provisions of this statute could be withdrawn from the possession of the superintendent until all the conditions-of the trust had been complied with, but he claims that inasmuch as the statute names a minimum amount that any sum deposited with the superintendent abov.e such minimum amount may be-withdrawn under proper provisions made as to the security by a, court of equity.

We think not Although at least $200,000 must be deposited as a condition of the license to the foreign company to do business in this state, yet we are entirely clear that any greater sum. deposited with the superintendent as security is deposited under the terms of the statute, and that both as to the superintendent, and the company the rights in the fund so deposited over the $200,000 are precisely the same as they are in regard to the last named sum. The whole deposit constitutes but one sum, and the whole is made in trust for the benefit of the same policyholders,. and is in fact and law one trust fund.

1 cannot see any importance, upon the question here involved,, to be attached to the fact that the statute fixes the minimum sum of such deposit. There is no prohibition as to making a larger deposit, and there can be no claim successfully set up that the deposit made by this company above the $200,000 was made under any other statute than that which provided for a deposit of at least, the above-named sum. The implication is conclusive that any sum greater than the minimum which might be deposited would be held by the official trustee upon the same terms precisely as the $200,000. I see no special force in the fact, conceding its existence, that the fund thus deposited might be liable for the-other debts of the company after the policy holders had been satisfied. The primary persons for whose benefit the fund is deposited are the policy holders, and what becomes of the fund after it has satisfied those for whose benefit it was primarily liable is not important to them. The superintendent is not a trustee for any others than those named in the statute.

An argument in favor of the right to make this order on the part of the court is sought to be maintained upon the assumption that the legislature has itself made this fund a part of the capital, the American capital, as it is called, of the company, and hence liable for all the debts of the company. Being so liable, the argument is, the trustee can be changed from a public officer to an individual by order of the court. The correctness of this latter claim is not obvious. I do not, however, think the character of this fund as a trust fund under the act of 1862 has been changed by subsequent legislation. The act of 1862 added to § 6-a provision that no fire company transacting business in the state should take any one risk to an amount exceeding ten per cent of its paid up capital. For nine years this provision stood, although a foreign corporation with a large paid up capital in the foreign state might properly have claimed that the limitation as to risks must be bounded by its actual paid up capital and not by the sum on deposit with the superintendent of insurance, which might be no more than $200,000. The act of 1871, chap. 888, was,, therefore, passed, wherein it was enacted that the capital of a foreign insurance company should, for all the purposes of that act and of the general insurance laws of the state, “ be the aggregate value of such sums or securities as such company shall have on deposit in the insurance or other departments of this state, and of the other states of the United States for the benefit of policy holders in any of such states or in the United States,” etc., and the act also provided for treating as capital bonds and mortgages and other securities properly taken as therein set forth.

The act also provided that no foreign insurance company should take any one risk for any greater amount in proportion to its •capital as determined by the provisions of the act, than companies •organized under our own laws. In this way the limitation as to ■capital was applied to foreign companies and they could no longer •claim to proportion, any one of their risks to the paid up capital they might have, but in making the proportion, that part only of the funds of the foreign company deposited or invested as pointed •out was to be for that purpose or for any purpose of the general insurance laws of the state regarded as capital. The act furnished a standard for measuring the percentage of risk. As the risk was ■one of insurance and the party insured thereby became a policy holder, it was very proper to regard as to him, for the purpose of the act, the deposit in the hands of the superintendent as capital .But there is no mention in any section of the statute of any intention to change the character of this trust fund thus deposited' with the superintendent. Mo such intention can be inferred from .any of its provisions.

Although under the act of 1871 it may be regarded as in the light of capital for certain purposes, yet it is at all times capital impressed with the special trust provided for in the statute, and ■there is no power in the court to authorize or direct its withdrawal from the official trustee upon any terms or conditions whatever. Ruggles v. Chapman, 59 N. Y., 163; People, etc. v. Chapman, 64 id., 557; In re Guardian Mutual L. Ins. Co., 13 Hun, 115; 74 N. Y., 617.

This official trustee is a statutory and not a voluntary trustee ¡as to the whole fund which comes into his hands. He receives it •as superintendent and transfers it to his successors, and whatever the liability of the state regarding the $200,000 (as to which we say nothing), it is not other or different in regard to the amount deposited according to the statute above that sum. It may be that legislation providing for the withdrawal of the amount over the minimum sum, upon the terms and conditions set out in the ¡special term, order would be valid and proper, but that is matter for the legislature and not for this court

We have carefully examined the case with a desire to see if some relief might not be given the plaintiff, but we think we are powerless.

For these reasons, as well as for those given by the general term, ■we think the defendant must succeed on this appeal.

The judgment of the general term reversing the judgment of the special term, must -be affirmed, with costs.

All concur, except Maynard, J., not sitting.


text:
    Mary Flood, Adm'rx, Resp’t, v. The Western Union Tel. Co., App’lt.

      (Court of Appeals,

      Filed March 1, 1892.)

    Negligence—Telegraph company—Liability to employees.
    Plaintiffs intestate, an employee of defendant, while replacing a peg in the outer hole of one of the cross arms of a telegraph pole, fell by reason of the breaking of the arm at .the inner hole, and was injured so that he died. Held, that defendant was not liable, as it did not insure the safety of its employees; the cross arms were not intended to bear the whole weight of any person; they were duly inspected when purchased, and. plaintiff's intestate had the opportunity to inspect the arm, and should-have done so before bearing his weight upon it.
    (Andrews, Gray and O’Brien, JJ., dissent.)
    • Appeal from judgment of the supreme court, general term,, fourth department, affirming judgment entered upon a verdict in. favor of plaintiff.

      Louis Marshall, for app’lt; A. T. Benedict, for resp’t

       Reversing 39 St. Rep., 674.

   Earl, Ch. J.

The plaintiff seeks to enforce liability upon the-defendant for the death of the intestate because of its negligence-as to the cross arm which broke under his weight. We have carefully read and weighed the evidence contained in this record,, and are unable to find any showing culpable negligence" adequate to sustain this judgment.

The defendant did not insure the safety of its employees. It-was bound only to use reasonable and ordinary care to provide, for them a safe place to do their work, and they assumed the; ordinary risks of the employment in which they were engaged. The cross arms on telegraph poles, manifestly, from their usual size and strength, are not intended to bear the whole weight of any person, and yet the evidence shows that persons engaged in fixing them and placing wires upon them do sometimes rest their weight upon them. It must always be a hazardous venture for' a. man to sit on the outer end of one of these cross arms engaged in. pounding near the end with a hammer. When the arm is new and perfect, this may be done with safety. But it must always, be attended with great danger, and it is unnecessary, as the work, can be done without resting the whole weight upon the arm.

There was no negligence in furnishing and putting up this arm. originally. It was of the material and of the size and apparent, strength and safety then in use by all telegraph companies.. And so far as appears such arms have been found adequate; for every purpose. For some time before the accident the defendant had been using larger and stronger arms to carry heavier wires, and only for that purpose. There was a system of inspection for the arms when purchased, and it does not. appear that there was anything in the external appearance of this arm when new which indicated any defect or weakness, or that there was any defect therein discernible by any ordinary inspection.

This arm had been in use for about six years, and during all that time had perfectly answered its purpose. There was no> proof showing how long such an arm ought to last or be used. The defendant had a system of inspection which appears to have been all that was practicable. Its inspectors went along the line-of telegraph poles and wires and carefully looked at them and. tried the poles to see if they were still strong and adequate. They were provided with arms so that if they discovered any that were insufficient they could replace them. They were not expected to-■climb up every pole and examine the arms thereon. Such an inspection would be manifestly impracticable and unnecessary. The linemen all discharge their duties in the day time. They have frequent occasion to climb the poles and work about the arms, and obviously they are the persons who are expected to see the condition of the arms and if they find them insufficient to replace them, or to report the fact. It is the obvious duty of every lineman before going upon one of these arms, many feet above the ■earth, to inspect it for his own safety.

The intestate had been in the employment of the defendant for ■several years, part of the time as foreman of a gang of men engaged in inspecting the defendants lines, and part of the time as .a lineman engaged in the ordinary duties pertaining to that employment He had all the opportunity which any inspector could have to know the condition of this arm, having frequently inspected that portion of the defendant’s line where this arm was. He saw it when be went upon it, and careful inspection was the first thing then suggested to him.' He knew that he was in a place of danger, and thus was bound before resting his weight upon the arm to examine it to see if it was sound and probably .adequate to support him. He knew precisely how the defendant inspected its poles and the arms on them and that it was not its custom to cause the arms on the poles to be inspected by :some one climbing up the poles, and hence as to him carelessness in not inspecting the arms cannot be attributed to it. He knew that no one knew the condition of the arm which broke better than he did, and no one in fact knew better than he its sufficiency to bear his weight. H he gave the matter -a thought, he knew that he must rely upon his own judgment in placing his weight upon the arm; but before placing his weight thereon he ought to inspect it and see if it was sound and strong enough to hold him, and that he had no right to rely upon the judgment or inspection of any other person. Under such circumstances it is impossible to perceive how the death of the intestate -can be charged to the defendant Leary v. B. & A. R. R. Co., 139 Mass., 580; Goodnow v. Walpole Emery Mills, 146 id,, 261. If the intestate was not careless in placing his weight upon that arm how can it be said that the defendant was careless in permitting him to do so ?

Without a more extended notice here of the evidence, giving the plaintiff the benefit of all the facts proved, and all the reasonable inferences from them, we think she failed to sustain the cause of action alleged by her.

The judgment should, therefore, be reversed and a new trial granted, costs to abide event.

Finch, Peckham and Maynard, JJ., concur. Andrews, Gray and O’Brien, JJ., dissent.


text:
    Charles U. Wing, Resp’t, v. Bernardo De La Rionda et al., App’lts.

      (Court of Appeals,

      Filed March 1, 1892.)

    1. Ejectment—Licensee of mortgagee in possession.
    One who takes possession of premises under a mere license from a mortgagee cannot set up liis possession against a regular foreclosure of the mortgage followed by the claim of right to immediate possession on the part of the purchaser at the foreclosure sale, sustained by the deed of the referee, the licensee proving no title in himself.
    '2. Same—Second trial—Extra allowance.
    On the second trial of an ejectment action had under the privilege given by § 1525 of the Code, the court may grant an extra allowance, notwithstanding one was granted and paid upon the first trial.
    Appeal from judgment of the city court of Brooklyn, general term, affirming judgment entered on a verdict directed for the plaintiff.

      0. J. Wells, for app’lts ; Edward M. Shepard, for resp’t

       Affirming 39 St. Rep., 119.

   Peckham, J.

Upon the last appeal in this action we held there was no finding and no uncontradicted evidence proving that Blanco ever accepted the letter of Jackson to him so far as to make a contract between them, or that he went into possession under the contract so formed. We also said that if the orders in the foreclosure suit were void because Blanco had no notice, it would seem that a defense to this action would in that event be made out, even if the defendant did not connect himself with the rights of Blanco. This was upon the theory that the plaintiff in -case the orders in the foreclosure case were entirely void, would in that event fail in showing any legal title in himself because his title was based upon the proceedings in the foreclosure suit which were themselves largely founded upon those orders. We did not -decide or intimate that the orders were void, but on the contrary - we held that upon the facts as then developed they were entirely valid.

We did not decide that in case it were proved that Blanco and -Jackson did make this contract and that Blanco obtained posses■sion by reason of it and expended money upon the real estate, that a failure to give Blanco notice of further proceedings in the foreclosure case would render those -proceedings void and therefore would show a failure of title in the plaintiff. We said in order to raise those questions there must be a proper finding as to the contract and the possession under it and payment By reason of it, or the facts should appear by uncontradicted evidence. In the absence of both we held the questions did not arise.

The defendant now claims lie has proved the writing and acceptance of the letter, possession taken by Blanco by reason of it and the expenditure of money thereafter upon the premises. Ho says therefore that being so in possession Blanco or his representatives were entitled to notice of all further proceedings in the foreclosure action, and that a failure to give such notice was fatal! to the existence of any title to the realty covered by the mortgage foreclosed under such a state of facts.

It is unnecessary to recite the other facts in this case as to the-rights of Wing under the power of attorney from Jackson to him. We are of the opinion that under that instrument Wing had. power to go on with the foreclosure proceedings and sell the property without any further notice to Jackson. The legal title-to the realty never was in Jackson and upon the.sale by Wing all Jackson could haye done was to have called Wing to account for the moneys (if any) realized by him from the sale.

Certainly the regularity of the sale under the foreclosure decree-was in no manner affected by the failure to give notice to Jackson, or to Blanco if he were then in possession of the premises by reason of the letter or contract already spoken of. Wing was acting; under the authority conferred upon him by Jackson himself, anda the court having obtained and retaining jurisdiction over the subject matter in the foreclosure suit and over the parties thereto, had jurisdiction under these circumstances to proceed with the execution of the decree for the sale of the premises without notice to* Jackson or Blanco, if the latter were then in possession. Whatever equity might attach to the possession of Blanco on account, of the failure to give him notice of the foreclosure proceedings-by reason of which Blanco might have a cause of action against Jackson or Wing for damages or for an accounting, such equity did not affect the validity of the proceedings in the foreclosure-suit and consequently did not prevent the purchaser at the foreclosure sale from obtaining the legal title to the premises. Notice-of proceedings conducted in his name was not required to be given. Jackson, for he by'reason of the terms of his appointment of Wing had dispensed with notice of any proceedings which Wing in carrying out that agreement might think proper to take. By-permitting Blanco to take' possession Jackson conveyed to him, no greater, legal right to notice of the proceedings in the foreclosure suit than Jackson himself had. They were both subject to the jurisdiction of the court in the foreclosure suit. The rights, of Blanco being therefore nothing more than equities and not. affecting the legal title transferred to the purchaser at the foreclosure sale, it is clear such equities under the old rules governing the case would have constituted, even in favor of Blanco, no defense to the action of ejectment where the legal title alone prevailed and a court of law gave judgment accordingly. Adams, on Ejectment, p. 44, 4th ed., 1854; Jackson ex dem. Potter v. Sisson, 2 Johns., Cas., 321; Jackson ex dem. Smith v. Pierce, 2. Johns., 221.

In out union of courts and remedies an equitable defense by and in favor of the party defendant may now be proved as against, a plaintiff in ejectment, and as a defense to the legal title. But. where a plaintiff proves a legal title, and the defendant can show nothing but a mere equity in favor of a third person, such as. a-, simple right to an accounting, or some such remedy, with which equity the defendant does not in any manner connect himself as. Interested' therein, so that he could enforce it, then the superior legal title must prevail. It was formerly held that even a superior ■outstanding title in a third person under whom defendant did not, ■claim must, in order to constitute a defense, be subsisting and .available, otherwise merely showing title out of plaintiff was no -defense. Foster v. Joice, 3 Wash. C. C., 498. There is a learned note to Robinson v. Campbell, 3 Wheat., 212, 224, upon the subject of the availability of a defense of title in' a third person not ■connected with defendant, where .plaintiff shows a superior title -to defendant. The writer is evidently of the opinion it does not in all cases make a defense. I think there is no doubt of the correctness of the rule which holds that in an action off ejectment proof of some equitable right or title in a third person with whom the defendant does not connect himself is no defense to a superior legal title in the plaintiff. Den ex dem. Dimon v. Dimon, 5 Hals. (N. J.), 156. The case .of Cagger v. Lansing, 64 N. Y., 417, .seems to be decisive of this question, and that case holds no new doctrine. This is not the case of an assignee of a mortgagee, in possession and defending his title against a third party, such as was the case of Jackson ex dem. Minkler v. Minkler, 10 Johns., 480. In that case the mortgagee conveyed by deed to the defendant subsequent to default in the payment of the mortgage, and the defendant asserted his right as against the lessor of the plaintiff, the ■original mortgagor, while here there is only a taking possession •of the premises by an individual under a mere license from the mortgagee, and such licensee sets up his possession against a regular foreclosure of the mortgage, followed by the claim of the right to the immediate possession on the part of the purchaser at the foreclosure sale, and sustained by the deed off the referee conveying title to him under the mortgage. Opposed to this claim of the-purchaser we find as a defendant one who proves no title in himself, but seeks to show equities existing in a .third party, with whom he in no manner connects himself. This he cannot do.

We have looked through the evidence in the case and find nothing in it which affords the least justification for the claim, that defendant is in any way connected with, or that he succeeds to any rights which may have been possessed by Blanco. Without deciding what those rights were, we think for the reasons above expressed the learned judge was right in directing a verdict for the plaintiff.

Second. There is an appeal from an order granting an extra allowance of costs which we must consider in connection with •this judgment, as the defendant claims there was no warrant of law for granting the allowance. He bases his argument upon the fact that at the end of the first trial of this action the court upon-plaintiff’s application granted an extra allowance which formed part of the judgment that was finally affirmed by this court. The «defendant upon such affirmance took a new trial under the statute, Code of Civil Pro., § 1525, and paid all the costs incurred up to that time, including the extra allowance. He now claims that as he has once paid an extra allowance the court had no power to award another, because but one extra allowance can be granted in an action. The cases cited by the defendant show that, where an extra allowance has been granted the successful party and it has been entered and forms a part of the judgment, when) such judgment is reversed upon appeal or a. new trial granted,, with costs to abide the event, if upon such new trial the same-party again succeeds and again obtains an order for an extra allowance, he can tax the last sum granted, but not the first, although the costs of the former trial were directed by the appellate court, to abide the event of the second trial. These decisions are based upon the general rule that but one extra allowance can be taxed in an action. This we think is proper as to all cases where a new trial is granted for error of law or fact and upon condition of payment of costs or where they are to abide the event.

In the action of ejectment, however, we think a different construction is called for where the new trial is taken as of right and without showing any other ground therefor than the will of the-party, to be exercised upon payment of all costs and damages* other than for rents and profits, or for use and occupation.

In taking a new trial under such circumstances and by virtue-of the statute, the party availing himself of the privilege in effect, commences or causes the commencement of a new action. At, common law there was no termination to the right of either party to an action of ejectment to commence another although judgment had gone against,him in the preceding actions upon the same title. No plea of former recovery could be pleaded in harto the action and the judgment therein conferred no title upon the-party in whose favor it was rendered. Adams on Ejectment, 4th, ed., 1854, p. 420. By ourrevised statutes it was provided that a judgment in ejectment rendered upon a verdict should be conclusive-as to the title established in the action upon the party against, whom it was rendered and against all who claimed under him by title accruing subsequent to the commencement of the- action. 2 E. S., 309, § 36.

It was, however, further provided that a party who was beaten in the ejectment suit might within three years apply to have the-judgment vacated, and upon payment of costs and damages recovered against him the court was directed to vacate the judgment, and grant a new trial. Id., § 37. Sections 1524 and 1525 of the-Code are substantially transcripts of the sections of the revised statutes just quoted. By these provisions the right of a party to-an action of ejectment to- as many trials of the question as he-might choose to indulge in by bringing successive actions, although beaten in all previous ones, was summarily curtailed, for the effect, of a judgment in such action was altered so as to make it conclusive and the party defeated could only obtain one more trial! of the question by paying up all the costs. Thus the new trial taken under the statute was, as I have said, in effect the bringing-of a new action by vacating as of course the old judgment and taking such new trial in the old action instead of bringing another. But the condition upon which such right was to be exercised was-the payment of all the costs incurred up to that time. It seems-to me that when a new trial is taken as of course under this statute,. and. the costs are paid, payment is not to be considered as preventing the granting of another extra allowance when the action comes on for trial again and the same party again succeeds. "We think the court had power to grant this allowance.

It results from these views that the judgment and order should be affirmed, with costs.

All concur.


author: Kellogg, J.

text:
    Hiram A. Douglas, Pl’ff, v. The Phenix Ins. Co. of Brooklyn, Def’t.

      (Supreme Court, Special Term, Clinton County,

      Filed, October 27, 1891.)

    1. Insurance (fire)—Attachment.
    Until proofs of loss are filed nothing is due to the holder of a policy of fire insurance, and an attachment issued and served upon the company by a creditor of such policy before such time is ineffectual to create a lien on the claim.
    2. Same.
    A claim by a resident of this state against a domestic fire insurance company cannot be attached in a foreign state by service on an agent of the company in that state.
    This action was brought by the plaintiff, who was a resident of Chateaugay, Franklin county, against the defendant to recover upon a policy of insurance granted to the plaintiff in this state upon property at Ohauteaugay, afterwards consumed by fire. Soon after the loss occurred a Boston firm, with whom the plaintiff had had previous dealings, commenced what is known in that state as a “ trustee process,” in the nature of an attachment, serving the same upon the commissioner of the insurance department of that state as the agent of the defendant under the laws of Massachusetts for receiving such service. Upon this suit being brought the defendant pleaded this trustee process in abatement of the action.
    The plaintiff demurred to the answer as setting forth no defense to the action.

      William P. Cantwell, for pl’ff; Q. A. /Seixas, for def’t
   Kellogg, J.

The only issue made in this case is that made by to affirmative defense set forth in the answer. All the allegations of the complaint are admitted, but this defendant, by way of plea in abatement, alleges in substance that certain creditors of this plaintiff residing in the state of Massachusetts have, by trustee process or attachment, in that state attached the claim here sued upon. To this affirmative defense the plaintiff demurs on the ground that the defense as alleged is insufficient in law upon the face thereof.

To dispose of this issue it may be sufficient to call attention to the single allegation in the complaint, to wit: “ That defendant agreed to pay * * * within sixty days after notice and its receipt of the usual proofs of loss,” and the allegation of the answer that the attachment in Massachusetts was issued and served upon defendant “before any proof of loss had been received by defendant from plaintiff.”

Upon the face of this statement it is clear that nothing was due or owing, at the time of such service, from defendant to plaintiff, nor was there at such time any claim liquidated or adjusted, and under no general public law could any such attachment attach anything. If there is any special statute of Massachusetts which could create a lien in such a case, it should have been in substance alleged so that the court could see how far it was inconsistent with the general public law, and how far it was intended to extend.

Upon this ground alone I am of opinion that the demurrer should be sustained.

There are, however, other grounds, and the most important and the one which impresses me as conclusive and final and disposes of all merits of this defense, however concisely it may be alleged, is this, that there is nothing in the state of ■ Massachusetts upon which the attaching creditors at any time can levy or obtain a lien by any compulsory process against this defendant

The defense relies upon the principle expressed in Embree v. Hanna, 5 Johns., 101, as the foundation of its contention, and claims that this principle has been applied in other states to cover completely the case before us, and refers to Barr v. King, 96 Penn., 485; National Bank v. Huntington, 129 Mass., 444.

The principle in Embree v. Hanna, as expressed in the opinion of Chief Justice Kent, went so far as to declare that a debt owing by an individual debtor residing in a sister state might be attached, if the laws of that state so declared, by a creditor of his creditor residing in this state, even though the creditor of such foreign debtor had no notice of such attachment, and no opportunity to defend; and that such attachment might subsequently be pleaded in abatement of a suit brought in this state by the creditor against such debtor, provided always that such attachment were served before the action was brought here. He says, “ The principle will support a idea”in abatement of an attachment pending and commenced prior to the present suit," and he adds the familiar expression, “ Qui prior est tempore potior est jure," for “ we may reasonably presume that if the priority of the attachment in Maryland be ascertained, the courts in that state would not suffer that proceeding to be defeated.”

This principle has been somewhat limited by the declaration of the general term of this district expressed in Martin v. The Central Vt. R. R. Co., 50 Hun, 347; 20 St. Rep., 375, but only so far as to limit its application to cases where the creditor has reasonable notice and opportunity to defend. When the individual debtor resides in another state any creditor of his creditor may attach such debt, if the laws of that state so declare, and such laws provide that reasonable notice is given to the creditors so that the provisions of the Constitution of the United States touching the deprivation by a state of the liberty or property of a person, except by due process of law, is complied with.

This proceeds upon the theory that so far as the debt of any resident in a state is concerned the legislature of that state may declare the situs of such claim, for the purpose of attachment, etc., to be the residence of the debtor.

This is so declared by Andrews, J., in Plimpton v. Bigelow, 93 N. Y., 596, in this language:

“ That the fundamental principle upon which all attachment proceedings rest, that the res must be actually or constructively within the jurisdiction of the court issuing the attachment in order to any valid or effectual seizure under the process. In the case of tangible property, capable of actual manucaption, it must have an actual situs within the jurisdiction. But credits, choses in action and other intangible interests are made by statute susceptible of seizure by attachment. The same principle applies, however, in this case as in the other ; the res, that is the intangible right or interest, to be subject to the attachment must be within the jurisdiction. But it is manifest- from the nature of this species of property that it must be a constructive or statutory presence only, founded upon some characteristic fact which determines its locality.”

The application of this principle expressed in Embree v. Hanna, as modified by Martin v. Vt. C. R. R. Co., taken in connection with the fundamental principles expressed above by Andrews, J., in Plimpton v. Bigelow, do not carry us to the extent of admitting that the defendant here can avail himself of any such defense. This defendant does not stand in the position of a debtor residing in the State of Massachusetts. It is a domestic corporation organized under the laws of, the State of Hew York, “ having dts domicil and residence alone within the bounds of the sovereignty which created it, and is incapable of passing personally beyond that jurisdiction."

The “ abstract entity,” the corporation, possesses a credit, an intangible right or interest, belonging to the plaintiff in this action ; and while with the permission of other states this corporation may send agents into other states and do business there, or own property there, it would be wholly inconsistent with the declaration, that it is incapable of passing personally beyond the bounds of the sovereignty which created it, to say that it is capable, without the consent or aid of the plaintiff, of carrying this credit, this intangible right or interest, belonging to the plaintiff beyond such bounds. This intangible right or interest must of necessity remain with the corporation, and is never, constructively or otherwise, in the possession of an agent. If this were not so,, and it were possible to conceive that any agent of this “ entity,” this corporation, outside the bounds of the sovereignty which created it, could in fact possess this intangible fight or interest, it would be interesting to know which of its agents possess it, and in how many of the states' of this union it is so possessed at one.- and the same time.

It must be taken to the state of Massachusetts before it can be -there subject to the jurisdiction of that state. “ The principle found in the codes of all enlightened nations is that jurisdiction, to be rightfully exercised, must be founded upon the presence of the person or thing in respect to which the jurisdiction is exerted within the.territory.” To say that it is possible for a legislature to enact that because an agent of this stable entity is within its borders this intangible interest or right which is inseparable from the corporate body is also there, is simply to say that the legislature may enact that any other species of property actually in the state of New York is also within the jurisdiction of Massachusetts for the purpose of appropriation or taxation or otherwise.

I am aware of the holding in cases cited and before referred to as Barr v. King and Nat’l B’k v. Huntington, but the doctrine declared in those cases has never been approved, in this state. Justice Andrews, in Plimpton v. Bigelow, refers to these cases, but not with approval. He says, “We do not enter into this question here.” And in the- light of what this learned justice does say in that case and hold to be the true principle for decision of the matters involved in that case, it is very difficult to sec how it can ever be held in this state that a corporation may send by it's agent, to places where it cannot itself go, these intangible rights and interests to subject them to a foreign jurisdiction. In theory it seems impossible, and-in practice, if such practice were permissible, considering the vast affairs of this class of corporations and the territory covered by their agents, confined to no one hemisphere even, the peril and burden attending the citizen of the state where such corporation is domiciled would be incalculable:

That a legislature may enact that for protection of it's citizens a foreign insurance company shall name some person in the state upon whom process may be served is reasonable. That the corporation touching any matters of controversy between it and any individual may be called by proxy into the courts.of the state where it so does business is also reasonable. But the legislature cannot transport the corporation itself into its' jurisdiction; no more can it transport there the intangible interests and rights inseparable from the body corporate and as firmly fixed as the immovable domicil itself.

If anything were lacking in the case of Plimpton v. Bigelow by way of application. of the principle there so- well reasoned to a case exactly like this, it is fully supplied by Justice Daniels in Straus v. The Chicago G. Co., 46 Hun, 217; 11 St. Rep., 359.

Demurrer sustained.


text:
    Charles White, an Infant, App’lt, v. The Witteman Lithographic Co., Resp’t.

      (Court of Appeals,

      Filed March 1, 1892.)

    1. Negligence—Master and servant—Employment of minor—Absence OF GUARDS.
    Plaintiff was an employee of defendant and his duty was to take papers from the bottom of a big machine, where he was exposed to no danger. The day he was injured, his machine not being in motion, at the request of another employee he pulled out a lever to start it and crushed two fingers in the cogs. Upon the trial of the action the court charged the jury specifically and at length as to the liability of defendant, and plaintiff’s counsel excepted “ to that portion of the charge where your honor states, if the hoy was aware of the absence of-the covering of the gearing, he cannot recover under the act.” Held, that as the absence of guards could impose no liability upon the employer when the boy, knowing of their absence voluntarily meddles with the machine, there was no error in that portion of the charge.
    2. Same.
    The judge charged that “ if the plaintiff while employed in the bronzing room gained from his experience, or from any source, knowledge how to do his work with safety, defendants are not liable even though they gave no instructions. Held, no error.
    3. Same.
    Previous to the year 1889 the limit of age at which a minor might be employed was placed at thirteen. By chap. 560 of that year it was increased to fourteen years, and as plaintiff was over thirteen in 1888, when injured, his employment was not in violation of any statute as to his age.
    Appeal from judgment of the supreme court, second department, affirming judgment in favor of defendant, entered on verdict.

      James C. Church, for app’It; Benj. B. Kenyon, for resp’t

       Affirming 34 St. Rep., 895.

   Earl, Ch. J.

The plaintiff, an infant, while in the employment was contact machinery, and he brought this action to recover his damages, and the jury awarded a verdict against him.

. The plaintiff entered into the employment of the defendant in May, 1888, and was injured about three months thereafter. His duty was to take the papers from the bottom of a big machine as they came through it, and in the discharge of that duty it is undisputed that he was in a perfectly safe place, exposed to no danger. On the day he was injured the machine was not in motion. Another employee was engaged in cleaning it, and requested him to pull out a lever on the side of the machine to start it, and as he did this with his right hand he placed his left hand in the cogs of wheels, and two of his fingers were thus crushed.

The plaintiff testified that no one instructed-him as to the nature of the machinery and the danger to be apprehended therefrom. On the contrary, the defendant gave evidence tending to show that he was fully instructed and warned as to the machinery, and that he was not engaged in his regular duty when he was injured, and was actually acting in violation of his previous instructions.

The plaintiff’s counsel now contends that the plaintiff was employed in violation of the act, chapter 409 of the Laws of 1886, as amended by the act, chapter 462 of the Laws of 1887, which acts provide that no child under the age of thirteen years shall be employed in any manufacturing establishment within this state,” and that “all gearing and belting shall be provided with proper safeguards.”

.. Ho question was made upon the trial as to the intelligence and competency of the plaintiff, and it must be assumed that he was sui juris, as no claim was made that he was not.

The only exceptions available to the plaintiff are those taken to the charge of the judge, and that we may appreciate them We will transcribe so much of the charge as is needful for that purpose. He said: “Now in order to recover anything against defendants in a case of this kind, it must be shown that they were negligent; that is to say, that they failed to comply with some obligation which the law imposed upon them.

“In this case it is suggested on behalf of the plaintiff that they were negligent in three respects. First, in employing so young a boy, he being under the age of fourteen at the time of the accident, there being a statute in this state which prohibits the employment in a manufacturing establishment of boys under fourteen. I charge you that he cannot avail himself of any such condition as that, because he went there and sought this employment; possibly some one else might make that point available, his father might in a suit for loss of services, but the boy himself knowing he was under fourteen and having gone there for such employment, cannot use that fact against the defendant.
“ Then again, it is also claimed, or suggested at any rate, that the defendant failed in not guarding this machine in a particular manner described by the same statute to which I have referred. But that point is not available against the defendant under the evidence in this case, because the boy was aware of the absence of the guards, and he must be held to have assumed the risks of working on the machine without a guard. No recovery can be had in that view of the case, and it, therefore, comes down to this question: Were the defendants negligent in failing to give this boy proper instructions as to the danger of working at or about this machine."

He then charged the jury fully as to the duty of the employer to instruct such a boy as to the character of the machinery and the danger to be apprehended therefrom, and he submitted to them, with instructions which are not complained of, the evidence as to that matter. He charged them that if they found that the defendant did fully instruct the boy as to the machinery, or if he fully knew its character and danger at the time of the accident, their verdict should be in favor of the defendant; but that if he was not so instructed and was free from contributory negligence, their verdict should be for the plaintiff.

Upon requests of defendant’s counsel he further charged as follows; “ If the jury find that the plaintiff knew he was doing what he had been commanded by defendant’s foreman not to do, in approaching the machine wheels, the verdict must be for the defendant;”.that “if plaintiff failed to exercise ordinary care, even were he found authorized to start the machine, defendant is not liable; ” that “ if the plaintiff be found of sufficient age and intelligence to understand fully the duties and dangers of his employment, the fact that he was a minor does not affect .the liability of the defendant; ” that “if defendant’s foreman gave such instruction as a reasonably prudent man would have given to a boy of the age and intelligence of the plaintiff, defendant is not liable; ” that “if the plaintiff from his own observation could have seen and appreciated the danger of approaching the machine, and was of sufficient age and intelligence to understand it, defendant is not liable; ” that “it is immaterial from what source plaintiff acquired knowledge of the character of the machine, if he did know and appreciate its character before the accident defendant is not liable; ” that “if he actually knew at the time of the accident all that reasonable instructions of the defendant would have brought him, defendant is not liable; ” that “ if plaintiff volunteered without instructions from one authorized to direct him to start the machine, the defendent is not liable.”

To the general scope of all these very specific charges the plaintiff’s counsel assented by not excepting to them. He took but one exception to any of them, and that was, at the conclusion of all the charge, to a portion of the main charge as follows : “ I except to that portion of the charge where your honor states, if the boy was aware of the absence of the covering of the gearing, he cannot recover under the act.” In view of all the portions of the charge not excepted to, it is not clear what question of law the counsel meant to raise by this exception. It is not always, true that the absence of guards about the machinery-in such a case, provided the boy knew it, can have no bearing upon the liability of the employer. The boy might unintentionally, and without fault on his part, come in contract with the machinery or accidentally fall or be thrown against it, and thus the absence of guards which would have protected him might constitute the negligence which would impose liability upon the employer.

But here the boy not only knew that the guards were not there, but, according to his own evidence, they would have been of no service if they had been there, because, having intelligence enough to take care of himself and to understand and appreciate the machinery and the danger to be apprehended from it, he intentionally went to the place where he was injured and took hold of the lever with his right hand, knowing what the effect would be, and intending to produce that effect, and then carelessly or thoughtlessly thrust his left hand into the wheels. It is impossible to perceive how any ordinary guards would have saved him from the injury. The absence -of guards can impose no liability upon the employer yrtien the boy, knowing of their absence, voluntarily meddles with the machine; and so there was no error in this portion of the charge. If the plaintiff’s counsel had wished that that portion of the charge should be limited, or more fully explained, he should have called the attention of the judge to the matter by appropriate requests.

The judge charged one request of defendant’s counsel which wrn have not yet-transcribed, and that is as follows: “If the plaintiff, while employed in the bronzing room, gained from his experience, or from any source, knowledge how to do his work with safety, defendants are not liable, even though they gave no instructions.” The judge said: “I charge that.” Counsel for defendant then said: “ Even if they gave no instructions ? ” The judge said: “ Yes,” and plaintiff’s counsel then excepted. This exception does not involve the general scope of the charge, nor the theory upon which the judge submitted the case to the jury. The rule of law laid down is that the omission by the employer of instructions in such a case does not impose upon him liability provided the boy knew by experience or observation the nature of the machine and the dangers to be apprehended therefrom. And so we held in Hickey v. Taaffe, 105 N. Y., 26; 6 St. Rep., 426.

There appears to have been upon the trial and in the briefs submitted to us a singular misapprehension as to the statutés regulating the age at which children may be employed in manufacturing establishments. It seems to have been assumed that they could not be so employed under the age of fourteen. The only statutes upon the subject in force at the time of the accident were those above cited, and they prohibited the employment of children in such establishments under the age of thirteen. It was not until the year 1889, by the act, chap. 560, that the limit of age was placed at fourteen. As the plaintiff was confessedly over thirteen years of age, his employment was not in violation of any statute as to his age.

Our conclusion, therefore, is that the judgment should be affirmed, with costs.

All concur.


author: O’Brien, J.

text:
    Elizabeth A. Clapper, Resp’t, v. The Town of Waterford, App’lt.

      (Court of Appeals,

      Filed March 1, 1892.)

    1. Negligence—-Defective highway.
    A person in passing over a wooden bridge over a gutter, which bridge formed a part of a crossing over the highway and had been constructed some years before by the property owners on both sides of the road, stepped ' into a hole in the plank and sprained her ankle. The commissioners had no notice of the defect. Held, that the town was not guilty of negligence in respect to the highway.

      2. Same—Laws 1881, chap. 700—Lack op funds.
    The town is liable only when negligence on the part of the commissioner is shown and he is not guilty of negligence in omitting to make repairs when he has no funds in his hands, although the supervisor had funds applicable to such purpose; until the money was paid to the commissioner the only neglect he could be charged with would be a failure to demand it or institute some proceeding to compel its payment.
    3. Same—Evidence—Repairs subsequent to accident.
    Plaintiff was permitted to prove that the commissioner of highways was seen repairing the walk several days subsequent to the accident, for the purpose of showing that he exercised control over the walk and had funds in his hands at the time of the accident to repair it. Held, error; as this action was against the town, and moreover this did not tend to prove that he had funds before plaintiff was injured.
    4. Same.
    The court should submit to the jury the question whether under all the circumstances the commissioner performed his full duty in obtaining funds for the repairs of roads and bridges by requesting the supervisor to pay over to him the highway fund in his hands.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment entered upon the verdict of a jury.

      J. W. Houghton, for app’lt; P. D. Niver, for resp’t.

       Reversing 41 St. Rep., 804.

   O’Brien, J.

The plaintiff recovered damages for an injury received by her from slipping into ■ a hole in a crosswalk or foot bridge in one of the public highways of the town known as Sara-toga Avenue on the 31st of July, 1889. This highway running north and south was sixty-six feet wide. It has curb lines and sidewalks on both sides. The space between the curbstones is forty ieet. On each side of the rounded road bed there is a gutter extending from the traveled part of the road to the curb line some ■six or eight feet in width which serves to carry off the water from the road. At the point where the accident happened there were residences on both sides of the road and the neighborhood was •quite populous .and the highway was traversed by an electric ■ street railway. Some ten or fifteen years before the accident the residents and property owners on both sides of the road constructed sidewalks, and in connection therewith a stone crosswalk across the road bed. This crosswalk, was extended on both sides of the xoad across the gutters to the curb line by means of a plank bridge or walk about four feet wide and leaving a space between the plank and the deepest part of the gutter of about twelve inches. On the evening of the accident the plaintiff got off a street car at the crosswalk, and desiring to go to her brother’s house a short distance farther on the line of the street, and finding the road bed muddy, she followed the crosswalk leading to ike sidewalk on the side of the road, and while crossing the plank portion of the crosswalk over the gutter she stepped into -a hole in the plank and sprained her ankle. The property own■ers and residents built the'side and cross walks under the authority ■of. statutes then existing. Laws 1860, chap. 61; Laws 1863, ■chap. 93: Laws 1881, chap. 233. The commissioners of highways had no actual notice of the defect in the walk, so far as appears by the evidence. The hole is described by the witnesses .as oblong, running lengthwise between two planks. The largest ■estimate of any witness makes it from four to five inches wide by ten to twelve inches in length. It is difficult to discover from "the proofs in the case any ground upon which the jury could have found that the town or its officers were guilty of any negligence in respect to this highway.

It is admitted that the roadbed, which is the part of a country highway ordinarily required to be kept in a suitable and safe condition for the travelling public, was in good order, and, unless the commissioner was negligent in failing to discover so slight a defect in a plank walk across a gutter on the side of the highway, built by the people who owned property on both sides of the road, there is no ground upon which the verdict in the plaintiff’s favor can stand. But if it be assumed that there was some evi■dence in the case for the consideration of the jury bearing upon the question of the negligence of the defendant in failing, through its proper officer, to discover the hole in this plank walk across ■the gutter on the side of the road and to repair the same, tiere "were errors committed at the trial prejudicial to the defendant and which necessitate a reversal of the judgment By chapter-700 of ."the Laws of 1881, the towns of the state were made liable for damages to any person suffering the same by reason of defective; highways or bridges in such town, in those cases only where the-commissioner of highways was liable at the time of the passage of that act. The defendant is not liable in this case unless, upon the-same facts, the commissioner of highways would have been liable-prior to the passage of the statute. It was always a defense to an action for damages against a commissioner of highways for injuries sustained in consequence of a defective highway, to show that he was without the necessary funds to make the repairs, and-without the power to raise such funds. Barker v. Loomis, 6 Hill, 463; People v. Board of Supervisors, 93 N. Y., 397; Hover v. Barkhoof 44 id., 113; Hines v. City of Lockport, 50 id., 236; Monk v. Town of New Utrecht, 104 id., 552; 6 St. Rep., 484. TLeact of 1881 has not changed the powers or duties of the commissioner of highways. He still has charge of the roads and bridges-in the town, and it is his duty to keep them in repair. The town is liable only when negligence on the part of the commissioner is-shown, and he is not guilty of negligence in omitting to make repairs when he has no funds in his hands.

It was shown in this case that the commissioner had no funds in his hands with which to defray the expense of any repairs to-roads or bridges. It was shown that the supervisor had lunds in his hands applicable to such purpose, but had not paid them over to-the commissioner of highways though the latter had demanded them. The commissioner could, no doubt, have required the supervisor to pay over the fund raised by the town to him for the repair of highways and bridges, but until the money was paid to-the commissioner the only neglect that he could be charged with would be a failure to demand it or to institute some proper proceeding to compel its payment to him, and it is not shown that the.commissioner was guilty of any negligence in that respect.

On the trial the plaintiff was permitted to prove, against the-defendant’s objection and exception, that the commissioner of highways of the town was seen repairing the walk several days subsequent to the accident. It was stated by the plaintiff's counsel, that this evidence was offered only for the purpose of showing that the highway commissioner exercised control over the walk where the accident occurred and that he had funds in his hands-"at the time of the accident to repair it, and the evidence was received for this purpose. When actions of this character were-brought against the commissioner of highways personally, before-the statute, it is possible that such testimony might have been held competent, Morrell v. Peck, 88 N. Y., 398, but now the action, is against the town and it is difficult to see how the acts of the-commissioner subsequent to the accident can be admitted in such an action as proof to bind the town for any purpose. It has frequently been held that the declarations or admissions of a public-officer cannot be given-in evidence to bind a municipal corporation of which he is the agent unless they are part of the res gestee.. Cortland County v. Herkimer County, 44 N. Y., 22; Luby v. H. R. R. R. Co., 17 id., 131; Hamilton v. N. Y. C. R. R. Co., 51 id., 100; Whitaker v. Eighth Ave. R. R. Co., id., 295. And if his •declarations cannot be admitted, the same principle would exclude his acts subsequent to the event in controversy.

Moreover there was no question in the case as to the control or authority of the commissioner over the whole highway between :the fences, the only question in this respect was whether he exercised proper diligence and care, and proof that the commissioner was seen repairing this walk a week or more after the accident •did not tend to prove that he had funds in his hands with which -to make the repairs before the plaintiff was injured. TTpon.what- ■ ever pretense such evidence is put into the case, it is generally used to mislead the jury. It is sometimes accepted by them as •an admission of negligence, and its natural tendency is undoubtedly •to influence them in that direction. Whether the defendant was negligent was a question to be decided upon the facts as they existed at the time of the injury, and anything that was done by the ■commissioner afterwards could have no legitimate bearing on that •question, and since the action now lies against the town, such ■testimony should be excluded. Corcoran v. The. Village of Peekskill, 108 N. Y., 151; 13 St. Rep., 105.

The defendant’s counsel requested the court to instruct the jury tin substance that they might find from the evidence that the commissioner had used reasonable diligence in obtaining funds by ■demanding them from the supervisor, and not obtaining them from him, they were not liable for a failure under such circumstances to repair the walk if it was out of repair. The court declined to so charge, and the defendant excepted. The court should have submitted to the jury the question whether under .all the circumstances the commissioner performed his full duty in •obtaining funds for the repair of roads and bridges by requesting the supervisor to pay over to him the highway fund' in his hands, .•and as the request’fairly embodied this proposition, we think it .should have been charged. There are some other questions in the case, but as a new trial must be granted for the reasons stated, it is unnecessary to. consider them.

The judgment should be reversed, and a new trial granted, costs to abide the event

All concur. •


text:
    Lydia A. Glasier, Resp’t, v. The Town of Hebron, App’lt.

      (Court of Appeals,

      Filed March 1, 1892.)

    Negligence—Highways—Liability of town fob unpbotected bbeae at SIDE OF BOAD—LAWS 1881, CHAP. 700.
    Plaintiff was driving along a town highway, seventeen feet in width, in good repair, but drifted with snow, when she met boys driving a sleigh loaded with coal barrels. At this point there was a break in the sheltering woods skirting the pond along the highway from eight to twelve feet wide. She stopped and called to the boys to pass; as they did so a barrel slipped off their sleigh and so frightened her horse that he backed off the .highway into the pond, upsetting plaintiff into the water. There was no -guard or fence along the break, but in order to get from the road to the water through this break one would have to turn his horse at right angles with the road and either drive or back it down to the pond. No accident had occurred for fifty years. Held, that to leave such a short distance unguarded was not sufficient evidence of negligence upon which to sulmit the case to a jury.
    Appeal from judgment" of the supreme court, general term, third department, affirming judgment in favor of plaintiff entered, upon verdict

      L. HI Northrop, for app’lt; J. Sanford Potter, for resp’t.

       Reversing 41 St. Rep., 747.

   Peckham, J.

The plaintiff. brings this action against the deto recover by her by reason of the negligence of the defendant. That negligence consisted,, as alleged by the plaintiff, in the failure on the part of the defendant to take proper care in guarding a public highway in the town,-, of Hebron, in consequence" of which negligence the road was unsafe and dangerous to travel over. The plaintiff alleged that on the 24th of March, 1888, while she was riding in a. cutter drawn by one horse .over the highway leading from West Pawlet toHebron, and known as the West Pawlet highway, and at a place-where it was but about twenty feet in width and ran along the top-of a steep embankment made above what was termed Reed’s-Pond, she was, without any fault or negligence on her part, thrown down the steep embankment on the northerly side of the highway and into the pond of cold and freezing water, where she remained some time, and by reason of which she sustained damage-in a stated sum. ■ ,

The alleged negligence was the failure of the defendant to place-a guard or rail at the point where the accident occurred so as to prevent any vehicle from being backed or drawn into the pond at. that point

The defendant denied the allegations of the complaint and the? parties went to trial upon the pleadings- at" a circuit court of Washington county. The uncontradicted evidence showed that, the highway in question at the point where the accident occurred was over seventeen feet in width and was in good repair and condition, except so far as it was affected by the snow" and the drifting thereof, caused by the great storm of March, 1888. At the point where the accident occurred there was a; break in the shelter of the woods which skirted the pond for most; of the distance along the highway, and that break was for a distance, varying by the evidence, between eight feet as the smallest, and twelve feet as the greatest distance. The highway skirted, the southern boundaries of the pond. There were also small bushes between the trees. It appeared quite clearly that in order-to get from the road to the water through this clearing or break in the woods one driving would have to turn his horse at right; angles with the road and either drive his horse or back it down, to the pond. There were a few other breaks of the same description where, as one of the witnesses said, there might be places-between the trees of sufficient width to permit a horse and cutter to reach the water from the highway if they went in backwards.

It is plain from the evidence that in no other way than directly at right angles with the road could a horse and cutter be driven, into or reach the pond- from the highway.

The way the accident in question happened, as related by the-plaintiff, was this: She was driving along the highway with a friend in the cutter behind one horse ; she had reached this point, in the road when she observed a team some little distance in front of her, and thinking that where she was was the best place to pass she stopped her horse and called out to the persons in charge of the team, who were boys, to come on and she would wait for them. This they did, and when at a point nearly opposite to her own horse and cutter, a barrel from the boys sleigh fell to the road just in front of or near to the plaintiff’s horse and frightened him so that he became unmanageable, faced towards the boys’ sleigh, turned the cutter so that it was towards the pond and then backed down the declivity from the highway to the pond, and. upset the plaintiff and her companion into the water. They remained in there clinging to a stump until they were rescued in. an. almost unconscious condition, when they were removed to a neighbor’s where they remained a few days greatly affected by their immersion in the water for so long a time and in such weather.

It appears by witnesses on the part of the plaintiff that they had known that highway from thirty to fifty years, and the plaintiff appears to have been familiar with it for a long number of years. Its condition was about the same as it always had been within the recollection of the witnesses, and the trees and bushes along its boundaries where it skirted the pond were all about the same height and nearness to each other as they had been during, that whole time. So far as appears no accident had ever occurred upon the highway of any nature, caused by the' absence of a guard or fence along these breaks in the woods.

This action is brought under chapter 700 of the Laws of 1881, which changes the law in regard to the liability of the towns of this state, and provides for their liability by reason of defective highways or bridges in cases in which commissioners of highways had theretofore been liable. Whatever may be the proper construction of this statute, we do not think that a case has been made out here within any meaning of that act. We think no negligence has been shown either on .the part of the town or any of its officers, including the commissioners of highways, at the time of the happening of the accident, or preceding it. We do not think that it was a fair question to be submitted to a jury as to the alleged negligence of the defendant. While it is said that a municipal corporation owes a duty of active vigilance to see that its streets and highways are maintained in a fairly safe condition, yet such expression, “ active vigilance,” is a relative term. What would be more than active vigilance under some circumstances, would be less than that amount under others. A thronged thoroughfare in a populous city would require much more attention in regard to its condition as to safety on the part of the officers of the corporation than would an ordinary highway running through .•a sparsely settled district of a town, and not along what might be regarded as a dangerous piece of country.

In this case we see an - ordinary country road which has been known for fifty years nearly, during which time, so far as appears, no- accident of the kind has ever occurred, and where the break in the woods skirting the boundary between the pond and the highway was of sucha short distance that in order to reach the pond it was necessary to turn one’s horse at right angles with the road and drive him or back him down to the water. To leave such a short distance, from eight to twelve feet, unguarded, we think was not sufficient evidence of negligence upon which to -submit the case to a jury. Ordinarily careful men, we think, would be excused if they neglected to see the necessity of placing a guard along those breaks to prevent possible access to the .pond. The distance was so short that if • in driving along the highway even on the darkest night the horse should lose his way and step off towards the pond, he would enter the woods before he could reach it, and it would only be by turning at right angles •directly that the pond could be reached at all, and then only through a very narrow opening. It was not an accident of a •character which was likely to happen, and there was no negli•gence in failing to guard against a very unlikely possibility.

We think this case comes within the principle decided in Hubbell v. City of Yonkers, 104 N. Y., 434; 5 St. Rep., 730.

For the reasons above given we think the plaintiff should have been non-suited, and the judgment must therefore be reversed and a new trial granted, with costs to abide the event..

All concur, except Andrews, J., not voting.


author: Maynard, J.

text:
    William H. Crossman et al., Resp’ts, v. The Universal Rubber Co. of New York, App’lt.

      (Court of Appeals,

      Filed March 8, 1892.)

    .13Ait—Action in foreign jurisdiction.
    Plaintiff attached property of defendant in New Jersey and brought an action in chancery there to disaffirm the sale of goods to it, offering to surrender the notes received therefor. The attachment proceedings were discontinued, but the chancery suit is still pending, Held, that the pendency of such action was a bar to an action in this state on one of the notes unless it can be shown that the chancery suit had in some manner terminated without affording substantial relief, or that by some final order or decree therein it had been adjudged that no property had come into the possession of the receiver which was applicable to the payment of the plaintiff’s debt, or that if any amount had been so received it was insufficient for such purpose.
    Appeal from judgment of the New York superior court, general term, affirming judgment entered on verdict directed by trial judge in favor of plaintiffs.

      Benjamin JEstes, for app’lt; Carlisle Norwood, for resp’ts.

       Reversing 42 St. Rep., 17.

   Maynard, J.

Upon a former appeal, 127 N. Y., 34; 37 St. Rep., 230, it was held that there had not been such an election .of inconsistent remedies ns would bar this action; but that the pendency of the attachment proceedings instituted by plaintiffs in. the circuit court of Hudson county, New Jersey, and of the suit, in chancery in that state brought by them for the sequestration of defendant’s property for the payment of its debts, were available-as a plea in abatement, unless it could be shown that such proceedings and suit had terminated, or that nothing bad been or could be realized therefrom for the payment of the defendant's indebtedness to the plaintiffs. Upon the trial now under review it was established beyond controversy that the attachment proceedings had been effectually discontinued, and they, therefore,, cannot be further relied upon as a defense to this action.

But it appears that the chancery suit is still pending, and it was-not sufficiently proven that the plaintiffs would not eventually receive satisfaction of their debt, or some part of it, by means of the" remedy which it provided. It is conceded that there has-been no order or decree .therein adjusting or settling the accounts-of the receiver, and determining the amount of assets for which, he ■ is responsible, or determining what sum, if any, the plaintiffs-are entitled to as the creditors of the defendant The only evidence upon the subject was given by the receiver, who testified that he had collected the sum of $9,221; that he had paid out for costs, commissions, personal expenses and other disbursements in administering the trust, $8,357. This statement included a claim of his own for fees and expenses amounting to $3,700, upon which he had drawn $1,500, leaving $2,200 unpaid, with a balance in his hands of but $863 to satisfy it It also included the sum of" $600 paid to the attorneys of the plaintiffs in this action, and $500 to their attorneys in the attachment proceedings, who were also their solicitors in the chancery suit. It did not necessarily follow from such' proof that the chancery suit would be unproductive of’ any advantageous results to the plaintiffs.

The court could not, on the trial of this action, properly take and state.the account of the receiver, or determine from his oral evidence alone that there would ultimately be no funds in his-hands out of which the creditors of the defendant could be paid wholly or in part. The defendant could not reasonably be expected to be prepared to meet any such question upon the trial, as-it was not embraced within the issues framed by the pleadings. In our judgment, this obstacle in the way of plaintiffs’ recovery could not be overcome except by showing that the chancery suit had in some manner terminated without affording substantial relief, or that by some final order or decree therein it had been-adjudged that no property had come into the possession- of the receiver which was applicable to the payment of the plaintiffs’" debt, or that if any amount had been so received it was insufficient for such purpose. The recovery here could not be for any greater sum than remained unliquidated after applying, what, might be realized in the proceedings in the New Jersey courts.

The ground upon which it is held that the pendency.of an action or proceeding for the collection of a debt operates to abate another action or proceeding subsequently commenced for the same-cause, is the injustice and oppression of permitting the creditor to have the means of twice collecting the same debt But when it is shown that the former action or proceeding has been withdrawn ■or discontinued, or, if ft is an action or proceeding in rem., that it has been finally disposed of without producing sufficient to pay the debt, the obstruction to the prosecution of the later action or proceeding is removed, and the plaintiff may proceed to trial and judgment therein. But the evidence of the termination of the earlier action or proceeding must be in the form of some judicial declaration to that effect. ' Usually it is an order of discontinuance, as was shown in this case with respect to the attachment proceedings; and we have been unable to find any precedent for holding that the plea in abatement is avoided by any proof short -of record evidence that the former proceeding has not resulted in a recovery of the debt.

The opinion of this court upon the former appeal is not in conflict with this view ; but, on the contrary,- is in harmony with it While it was there stated that the chancery suit would not be a defense in abatement if the plaintiffs could show that nothing had been or could be realized therein by them as the creditors of the defendant, it was assumed, to quote the language of the learned judge, that this would be “shown by evidence legitimate for that purpose.’’ Such evidence was not given, and for the want of it the plaintiffs were not entitled to recover.

• The judgment and order appealed from must be reversed and a new trial granted, with costs to abide the event.

All concur, except O’Brien, J., absent.